remanded EB-2 NIW Case: Public Health

PURLTC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
SRC 07 270 54410 
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 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. 
F. Grissom 
Acting Chief, Administrative Appeals Office 
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. Because the petition cannot yet be approved, however, the AAO will 
remand the matter to the director for further consideration and action. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. $ 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as an assistant professor at the University of Texas Health Science Center 
(UTHSC), Houston. He has also worked as an adjunct assistant professor at the University of 
Minnesota (UM), Minneapolis. 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 had 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 and copies of previously submitted exhibits. 
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)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 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 
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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., 1 1 (1 989). 
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 U.S. 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. 2 15 (Comrnr. 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 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. 5 204.5(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 offerllabor 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 filed the petition on July 20, 2007. In a statement accompanying the initial filing, 
counsel stated that the petitioner "has conducted pioneering research in the field of public health 
research related to smoking and obesity-related problems." Counsel deemed the petitioner "a top 
researcher in his field." With regard to the petitioner's specific role in these research projects, counsel 
referred to the petitioner as "the project statistician." 
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The ~etitioner's initial submission included several witness letters from individuals who have worked 
with the petitioner in Minnesota or Texas. 
 , whom 
the petitioner had previously served as a research assistant, stated that the petitioner "is a very gifted 
methodologist. He has expertise in a wide range of advanced statistical techniques." 
During his time at the University of Minnesota, [the petitioner] was responsible for 
helping to design methodologically sound research studies and developing and 
implementing analytical strategies for multiple research projects. . . . 
High quality research projects are dependent on individuals who bring a wide range of 
methodological and statistical expertise. [The petitioner] has served in this important 
role on many large research projects . . . and will continue to make significant 
contributions to the public health field through his continued work in the U.S. 
stated that the petitioner "played a central role . . . [in] the most rigorous 
[studies] to date to demonstrate that local tobacco policies not directed at youth can significantly [alffect 
youth smoking rates." 
 asserted that the petitioner's "work has led to national recognition," 
but did not elaborate except to state that the petitioner has published his work in journals and presented 
it at conferences. 
and an adjunct associate professor at UM, stated: 
I have worked closely with [the petitioner] and have become very familiar with his 
technical and professional skills. . . . 
I have found [the petitioner] to have excellent abilities in the practical application of his 
health research skills. . . . 
[The petitioner's] work puts him among the leading public health research professionals 
in the country. 
I have worked with [the petitioner] for the past several years, engaging in face-to-face 
meetings on a semiannual basis to review and discuss issues of participant safety and 
data integrity for my research project. In addition to providing excellent statistical 
advice as a member of the DSMB [data safety and monitoring board], [the petitioner] 
has also demonstrated his high ethical standards by raising questions where appropriate 
that clearly demonstrate his interest in the safety and well-being of the participants in the 
study. . . . 
It is clear that [the petitioner] has substantial education and research experience and is a 
respected researcher whose work is addressing some of the largest public health threats 
facing the United States today. 
We were delighted when [the petitioner] decided to accept our offer to become a 
member of our faculty and we plan to reclassify his rank to Assistant Professor on the 
tenure track after the immigration issues have been resolved. . . . 
[The petitioner] has acquired an excellent and successful track record on grant writing, 
particularly as author of research methods sections. He is a strong self-motivator and 
self-learner, always keeping up with new developments in the statistical field. . . . 
Since arrival, he has shown that he is continuing his track record in research and 
teaching. . . . 
[The petitioner] is a well-trained scientist who has unique and valuable skills which are 
being used to further understand national public health issues such as tobacco use, 
obesity, physical inactivity, and other health risk behaviors. 
The petitioner submitted copies of his published and presented work, as well as documentation of 
citation of that work. The exhibit list submitted with the petition did not specify the number of such 
citations. The initial submission in the record contains one independent citation. 
On September 25,2008, the director requested further evidence to show "how the beneficiary's research 
is greaterldifferent from [that of his] peers who have conducted similar research." In response, the 
petitioner submitted updated citation information, showing 44 citations of his work, and new witness 
letters, all fiom UTHSC faculty members. 
[The petitioner] has played an important role in collaborating with principal 
investigators [PIS] on numerous NIH [National Institutes of Health]-funded research 
projects and has contributed to their success. He works in partnership with the PI during 
the entire application process, from brainstorming and defining research questions, to 
developing hypotheses, designing the study, and proposing the analysis plan. . . . 
He is unique and different fiom his statistician peers in ways which make him very 
much sought after by his colleagues when contemplating a grant application and 
implementing the study. [The petitioner] is capable of making statistics understandable 
to his non-statistician colleagues (and students). 
Other UTHSC faculty members praise the petitioner's abilities as a statistician, author of successful 
grant proposals, and instructor. The petitioner accepted a tenure-track assistant professorship at that 
institution on March 3,2008. 
The director denied the petition on November 6, 2008. The director acknowledged the petitioner's 
submission of witness letters, but noted that the "letters were submitted from individuals who have 
worked with or personally know the beneficiary." Regarding the citation of the petitioner's published 
work, the director stated "this is not unusual or different from other researchers who have had their 
work referenced or cited." The director concluded that "the record does not persuasively establish that 
[the petitioner's] accomplishments are of such unique significance that the labor certification 
requirement can be waived." 
On appeal, counsel argues that the director did not give sufficient weight to the petitioner's "long list of 
accolades." Counsel describes the director's dismissal of the petitioner's citation record as 
"preposterous." Review of the record supports a finding in the petitioner's favor. While it is true that 
the witness letters represent the petitioner's close collaborators rather than independent witnesses, the 
petitioner's extensive citation record is direct evidence of the wider impact and influence of the 
petitioner's work. The witness letters are of value because they establish the petitioner's central role in 
the research projects that led to the cited articles. The director did not explain why the petitioner's 
documented citations received so little weight in the director's decision. 
Some of the witnesses' assertions are not particularly persuasive. For example, the petitioner's stated 
ability to write successful grant applications is not a strong factor in favor of granting the waiver. The 
funding was earmarked for grants in any case; the petitioner simply ensured that the funds went to his 
employer rather than to some other United States educational or research institution. Thus, this local 
benefit to one institution is offset by the unavailability of those funds to other institutions seeking the 
same limited funding. On balance, however, the petitioner has presented a persuasive case for approval 
of the waiver. For procedural reasons, however, we cannot grant the waiver outright at this time. 
The regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien (or equivalent 
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 raise this issue in any communication with the petitioner. Under 8 C.F.R. 5 
103.2(b)(8), the director must allow the petitioner a reasonable opportunity to provide this required 
documentation. 
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 his 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 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 above and entry of a new decision which, if 
unfavorable to the petitioner, is to be certified to the Administrative Appeals Office for 
review.