remanded EB-2 NIW Case: Medical Research

identifying kt2 deleted to 
U.S. Department of Homeland Security 
20 Mass. Ave.. N.W., Rm. 3000 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: TEXAS SERVICE CENTER Date: SEP 2 6 2008 
SRC 07 800 21871 
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. 8 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. 
u 
obert P. Wiemann, Chief 
Appeals Office 
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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; however, because the petition is not approvable, it is remanded for fkther 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 research associate at the Children's Nutrition Research Center at Baylor College of Medicine 
(BCM), Houston, Texas. The petitioner asserts that an exemption fkom 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 failed 
to submit supporting documentation within seven days of electronically filing the petition. 
The petitioner electronically filed the Form 1-140 petition on July 23, 2007. 
 Online instructions for 
electronically filing Form 1-140' read in part: "The required initial evidence must be received by the Service 
Center within seven business days of e-Filing the Form. If you do not submit the required initial evidence in 
the requisite time period, you will not establish a basis for eligibility, and we may deny your petition or 
application." 
The director denied the petition on December 20,2007, stating "no evidence has been received in support of 
[the] petition." On appeal, the petitioner submits copies of documentation showing that the required evidence 
was mailed one day after the electronic filing date, and delivered two days after that on July 26, 2007. The 
record confirms the accuracy of these claims. 
The petitioner has overcome the sole stated basis for denial of the petition, by establishing the timely 
submission of the supporting evidence for his petition. Therefore, the director's denial cannot stand. 
Nevertheless, another factor, not mentioned by the director, prevents the outright approval of the petition. 
The regulation at 8 C.F.R. 9 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the exemption must 
submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The record does not contain this 
required document, and therefore the petitioner has not properly applied for the national interest waiver. In 
the interest of thoroughness, the AAO will review the matter on the merits. If the merits do not support 
approval of the petition, then it would serve no purpose for the director to instruct the petitioner to submit the 
required Form ETA-750B. 
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. -- 
1 
Instructions available at http://www.uscis.gov/portal/site/usci/? 
vgnextoid=47f3,065d85ceeO1OV~nVCM1OOOOOOecd190aRCRD&vgnextcl~annel=9059d9808bcbd0 1OVgnVCMlOOOOOd 
lfld6alRCRD, visited September 12,2008. 
Page 3 
(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 available evidence indicates that the petitioner qualifies for classification 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, 
lOlst Cong., 1st Sess., 11 (1989). 
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 [now 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. 215 (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 
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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. $ 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 offedlabor 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 submitted nine witness letters; we shall discuss examples here. Five of these letters are from 
BCM faculty members. Professor Teresa A. Davis stated that the beneficiary's "research has focused on the 
function of SIRTUIN genes in aging and aging related diseases, such as obesity and cancer." - 
added that the beneficiary's work with transcription factor PU.1 "provides a new potential target for 
developing anti-obesity and anti diabetes drugs." 
ssistant Professor at BCM, stated: 
Our lab is studying the molecular mechanism underlying the observation that long term 
dietary food restriction delays aging and age-related diseases, including obesity, diabetes and 
cancer. The idea is that if we can figure out the molecular players mediating the effects of 
dietary restriction, we might be able to design drugs to activate the pathway to promote 
longevity and fight against diabetes and cancer. 
described several of the petitioner's research contributions. Here is one example: "He has also 
developed transgenic mice with SIRT2 over expression in the fat tissue and found that forced SIRT2 
expression reduces total fat mass in mice to make mice leaner. We predict that these mice are resistant to diet 
induced obesity and they have a longer lifespan. Experiments are underway to confirm these predictions." 
Other letters demonstrate that the beneficiary's reputation and impact are not limited to BCM. For example, 
-[of the Chromatin and Gene Expression Laboratory at France's Institut National de 
la Santk et de la Recherche Midicale (INSERM), stated: 
I became interested in [the petitioner's] work because of our common interest in histone- 
deacetylases. . . . [The petitioner] is working in a US-based laboratory . . . specializ[ing] in 
the functional studies of a specific group of histone-deacetylase, SIRTl and SIRT2. . . . 
I became aware of [the petitioner's] new findings on SIRT1 and SIRT2 in the recent histone- 
deacetylase meeting sponsored by [the] Federation of American Societies on Experimental 
Biology. . . . [The petitioner] and other scientists have independently demonstrated that 
SIRT2 and SIRTl can deacetylate FOX03a . . . [which] is a critical transcription factor 
Page 5 
regulating metabolism, anti-oxidation and anti-cancer reaction. 
 The deacetylation of 
FOX03a was found to increase its DNA binding affinity, presumably enhancing FOX03a 
function. There are also reports showing that SET1 down regulates FOX03a function. [The 
petitioner] speculates that there are additional regulatory mechanisms which he proposes to 
investigate. . . . His data . . . provided one explanation [of] SIRTl's mysterious effect on 
FOX03a. . . . 
[The petitioner's] finding and on-going research is very important because pharmaceutical 
companies in the U.S. and around the world are investigating the potential beneficial effect of 
small compounds that can activate SIRTs, as anti-aging supplements. [The petitioner's] work 
brings a cautionary note on the use of such small molecule regulators of SIRTs. He has 
indeed demonstrated that SIRTs' regulatory functions on FOXO transcription factors may 
cause harmful effects in some physiological or pathological conditions where FOXO 
degradation is prominent, such as in prostate and breast cancers. . . . 
[The petitioner's] research not only discloses the mechanism of SIRTl and SIRT2's 
regulatory effect on FOX03a function, but also leads to the development of new approaches 
to rationally control the activity of SIRT1, SIRT2 and FOXO, in patients to treat cancer and 
the adverse effects of aging. 
The petitioner submits copies of his published articles, along with a printout from a citation database showing 
that one of his articles, published in 2005, was cited 25 times within two years of publication. Another 
printout appears to refer to additional citation of the petitioner's work, but the document is in Chinese with no 
certified English translation as required by 8 C.F.R. 3 103.2(b)(3). 
The petitioner has shown, by the evidence described above and other evidence in the record, that his work 
appears to have attracted significant notice and influenced others in the field. If further adjudication 
(including a request for such evidence as the director may deem necessary) supports rather than refutes this 
finding, and the petitioner provides the required initial evidence including Form ETA-750B, then approval of 
the petition would be in order at that time. The record as it now stands, however, does not yet warrant 
approval of the petition. Therefore, this matter will be remanded. As always in these proceedings, the burden of 
proof rests solely with the petitioner. Section 291 of the Act, 8 U.S.C. 3 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 mher action in 
accordance with the foregoing and entry of a new decision which, regardless of the outcome, is 
to be certified to the Administrative Appeals Office for review.