remanded EB-2 NIW Case: Molecular Biology

U.S. Department of Homeland Security 
20 Mass. Ave., N.W., Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
?!Jd L 
FILE: Office: TEXAS SERVICE CENTER Date: SEP 0 6 2005 
SRC 04 107 53091 
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 
cided your case. -kny further inq;iry must be made to that office. 
"h~obert P. Wiemann, Director 
u 1 Administrative Appeals Office 
DISCUSSION: The Director, Texas 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withdrawn and the petition will be remanded for further action and consideration.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. 5 1153(b)(2), as a member of the professions holding an advanced degree. At the time of filing, the 
petitioner was a doctoral student at Baylor College of Medicine. 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 does not qualify for an exemption from the requirement of a job offer because 
his qualifications did not match those of witnesses who had written in support of the petition. 
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. 
In support of the petition, the petitioner submitted letters from several witnesses. These witnesses hold Ph.D. 
degrees. In denying the petition, the director stated: 
[Tlhe beneficiary does not even possess the minimum qualifications of others in this field of 
expertise. The beneficiary possesses a Bachelors of Science degree in biochemistry and a 
Master of Science degree in molecular biology. While a person who holds a master's degree 
is not restricted from conducting research in any given field, the evidence in the record 
demonstrates that every one of the beneficiary's peers possesses a Ph.D. in the field of 
expertise. . . . 
Additionally, the beneficiary is still pursuing (or at least at the time of filing) the minimum 
qualifications and knowledge in the field of expertise. 
This being a national interest waiver petition, there is no specific job offer under consideration. The director 
admitted that "a person who holds a master's degree is not restricted from conducting research in any given 
field," a stipulation that wholly contradicts the director's conclusion that the petitioner lacks "the minimum 
qualifications" to work in his chosen field. Certainly, the petitioner's employment prospects will be broader 
after he receives a doctorate than before he receives it, but there is nothing in the statute, regulations, or case 
law to support the grounds for denial as worded by the director. 
The director's finding was in error because the director failed to consider the merits of the petitioner's 
national interest claim, focusing instead on the fact that the petitioner had not yet completed his doctoral 
studies. 
That being said, the director failed to acknowledge a major issue that prevents the approval of the petition. That 
issue concerns the petitioner's eligibility for the underlying immigrant visa classification. The petitioner must 
demonstrate that he qualifies for classification as either an alien of exceptional ability or a member of the 
professions holding an advanced degree. 
The director, in rendering the decision, stated that the petitioner "possesses a Bachelors of Science degree in 
biochemistry and a Master of Science degree in molecular biology.'' This statement indicates that the 
petitioner qualifies as a member of the professions holding an advanced degree. The record, however, does 
not support this finding. 
8 C.F.R. 5 204.5(k)(3)(i) states that, to show that the alien is a professional holding an advanced degree, the 
petition must be accompanied by: 
(A) An official academic record showing that the alien has an United States advanced degree 
or a foreign equivalent degree; or 
(B) An official academic record showing that the alien has a United States baccalaureate 
degree or a foreign equivalent degree, and evidence in the form of letters from current or 
former employer(s) showing that the alien has at least five years of progressive post- 
baccalaureate experience in the specialty. 
Here, the petitioner cannot satisfy 8 C.F.R. 9 204.5(k)(3)(i)(B), because the petitioner has only about two years of 
actual post-baccalaureate employment experience. The regulatory reference to "employers" indicates that the 
experience in the specialty must take the form of employment experience rather than continued graduate study. 
The director's assertion that the petitioner holds a master's degree would, if true, satisfy 8 C.F.R. 
fj 204.5(k)(3)(i)(A); but the record contains no official academic record, or any other evidence, that the petitioner 
does in fact hold such a degree. Rather, the petitioner entered directly into a predoctoral program at a time when 
his only college degree was his baccalaureate degree. An independent credential evaluation in the record 
indicates that the petitioner "is considered to have the achievement of a level of knowledge, competence, and 
practice that is equal to that of an individual who has a Master of Science degree in the specialty occupation in 
the United States" (emphasis in original). The regulations plainly require either an official academic record of a 
master's degree, or letters from employers establishing at least five years of post-baccalaureate experience. The 
petitioner has met neither of these requirements, and therefore the available evidence does not indicate that the 
petitioner, at the time of filing, qualified as a member of the professions holding an advanced degree. 
Counsel has indicated that the petitioner seeks classification as an alien of exceptional ability. The director, in the 
decision, did not address this claim. Because the petitioner, at the time of filing, had neither an advanced degree 
nor its defined equivalent, the petitioner must establish exceptional ability in order to qualify for the classification 
sought and, in turn, consideration for the national interest waiver. The director must determine whether the 
petitioner meets the regulatory requirements set forth at 8 C.F.R. tj 204.5(k)(3)(ii), which relate to exceptional 
ability. 
If the petitioner is able to establish eligibility for the underlying classification, then the petitioner is entitled to full 
consideration on the merits of his national interest claim; the petitioner's status as a doctoral student is not 
inherently disqualifying in that regard. The director should consider all the available evidence, including the 
citation history of the petitioner's several published articles. 
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. 5 1361. 
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.