sustained EB-2 NIW Case: Bioanalytical Chemistry

(b)(6)
DATE: AUG 2 4 2015 FILE#: 
PETITION RECEIPT #: 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Service: 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
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 is the non-precedent decision of the Administrative Appeals Office (AAO) for your case. 
Thank you, 
Jfl.fnbecg 
v~ Chief, Administrative Appeals Office 
www.uscis.gov 
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DISCUSSION: The Director, Texas Service Center, denied the Form I-140, Immigrant Petition for 
Alien Worker (Form I-140). The matter is now before the Administrative Appeals Office (AAO) on 
appeal. We will sustain the appeal and approve the petition. 
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 a researcher in the field of bioanalytical chemistry. 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. 
On appeal, the petitioner submits a legal brief and additional evidence. 
I. LAW 
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 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 defme the term "national interest." Additionally, 
Congress did not provide a specific definition of "in the national interest." The Conunittee 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, lOlst Cong., 1st Sess., 11 (1989). 
In reNew York State Dept of Transportation, 22 I&N Dec. 215, 217-18 (Act. Assoc. Comm'r 1998) 
(NYSDOI), has set forth several factors which must be considered when evaluating a request for a 
national interest waiver. First, a petitioner must establish that the beneficiary seeks employment in an 
area of substantial intrinsic merit. !d. at 217. Next, a petitioner must establish that the proposed benefit 
will be national in scope. !d. Finally, the petitioner seeking the waiver must establish that the 
beneficiary will serve the national interest to a substantially greater degree than would an available U.S. 
worker having the same minimum qualifications. !d. at 217-18. 
While the national interest waiver hinges on prospective national benefit, the petitioner must est1blish 
that the beneficiary's past record justifies projections of future benefit to the national interest. .fd. at 
219. The petitioner's assurance that the beneficiary will, in the future, serve the national interest cannot 
suffice to establish prospective national benefit. The term "prospective" is included here to require 
future contributions by the beneficiary, rather than to facilitate the entry of a beneficiary with no 
demonstrable prior achievements, and whose benefit to the national interest would thus be entirely 
speculative. !d. 
II. FACTS AND ANALYSIS 
The petitioner filed the Form I-140 on May 8, 2013, at which time he was working as a postdoctoral 
fellow in the Department of Chemistry and Biochemistry at the In an 
accompanying introductory statement, the petitioner indicated that he "has made exceptional 
contributions to the field of chemistry with an emphasis on the development of biosensors and 
analytical instruments," and that his published scholarly works "have been cited at least 105 times 
by researchers around the world" (emphasis in original). 
The petitioner submitted copies of 12 journal articles that he authored or co-authored, all published 
between 2009 and 2013. Five of the articles derived from the petitioner's work at 
the other seven were from his later work at the l . The petitioner 
submitted printouts from the Google Scholar search engine showing 105 citations, including
1 
self­
citations by the petitioner and his collaborators. 
One of the papers that the petitioner co-authored was a 2012 article m ,, 
" 1 The - - -
petitioner submitted evidence that this article was the focus of an . 2012, story in 
" The story stated that the micropumps represent "an advance toward 
analyzing blood and urine instantly at a patient's bedside" on "futuristic 'labs-on-a-chip,' which 
reduce entire laboratories to the size of a postage stamp." 
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The petitioner submitted five letters in support of the petition. Dr. , now a senior 
research scientist at , previously collaborated with the petitioner at the 
and was the first author of the 2012. article described 
above. Dr. credited the petitioner with developing the high pressure open channel electroosmotic 
pump that was the subject of their collaboration, and described him as "a driving force in this 
research area." 
Dr. supervised the petitioner's doctoral studies at . where Dr. 
is a professor. Dr. described the petitioner's success in his past 
research on the 
development of analytical instruments for detecting glucose levels: 
One of [the petitioner's] studies that particularly caught the attention of many other 
researchers was his work on gold nanoparticles-bacterial cellulose nanofibers 
nanocomposite (AuBC) as a platform for amperometric determination of glucose with 
biomedical application in treating diabetes .... 
[The petitioner] has designed and built a glucose biosensor ... with especially fast 
response, an acceptable linear range, a low detection limit, satisfied stability, and 
good anti-interference and reproducibility. 
The remaining three letters are from individuals who stated that they have not collaborated with the 
petitioner but who are aware of his work through his publications. Dr. "a Reader in 
Electroanalytical Systems in the School of Engineering and Material Science at the 
' stated that the petitioner's "pioneering research has improved our analytical 
instruments for biomedical applications." Dr. described two of the petitioner's biosensors in 
technical detail, concluding that the petitioner "has provided his fellow experts in the field with the 
critical analytical instruments necessary to determine important biomedical parameters." 
Dr. , professor at , praised the petitioner's "outstanding research on 
biosensors as analytical instruments" and states that his AuBC biosensor, described above, 
"performed exceptionally fast" and that he identified key mechanisms of the composite's operation 
on heme proteins. Dr. asserted that the petitioner's "fabrication approach can be extended to 
make other nanoelectrodes used in electrochemical and biochemical applications." 
Dr. associate professor at , credited the petitioner with 
"multiple original contributions to the field of bioanalytical chemistry," such as "a novel hybrid 
device for two-dimensional protein separation." Dr. described this device as "a less labor­
intensive and more automatic device, which enhances the standardization we have long been 
pursuing." 
The director issued a request for evidence (RFE) on July 19, 2013 noting that the petitioner's articles 
"have been cited 105 times by other researchers," but stated: "The number of citations needs to be 
viewed in the context of [the petitioner's] career field .... [I]t is debatable if 105 citations would be 
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considered an above-average count for that field." The director also questioned the significance of 
the petitioner's role in his research at the which was conducted under the 
direction of a professor. The director stated, "[t]his leads to the question of how much of the work, 
and the credit for it, accrue exclusively to the [petitioner]." 
In response, the petitioner submitted updated citation figures, with the assertion that his "citation 
records exceed the average citation records of others in the chemistry field ... , suggesting that 
his past record far exceeds the average" (emphasis in original). The new figures totaled 120 
citations, including self-citations. 
A table from lSI Web of Knowledge showed "Average Citation Rates for papers published by field, 
2003-2013." The figures included in the table for the field of chemistry indicate above-average 
citation rates for seven of the petitioner's published papers. 
The petitioner submitted a letter from Dr. associate professor at and 
co-author of the petitioner's most heavily cited paper (with 45 citations at the time of filing, 
increased to 52 when the petitioner responded to the July 2013 RFE). Dr. : stated that the 
petitioner "made significant contributions to" the article, and that without his work, "this material 
had no application to show its function and the paper would not have been published on Advanced 
Functional Materials." 
Regarding the extent of the petitioner's contributions to, and credit for, his work, the petitioner's 
response letter stated that "[ s ]cience, by nature, is a collaborative discipline," and that the 
petitioner's author credits on the published articles serves to demonstrate his active involvement in 
the projects described in those articles. 
The director issued a second RFE on November 26, 2013, stating: "Regarding the 120 citations, 
analysis reveals that 91 ofthem were from [the petitioner's] research at ... There 
appear to be only 7 citations from his current research at the which does 
not support the belief that his current work is impacting the field." The director also stated that the 
petitioner's "contributions must be distinctly set apart from [those of] other members of the team," 
and that the petitioner has not established his "specific roles at Dr. I laboratory at the 
In response, the petitioner submitted evidence that his citation total had grown to 139, and stated that 
the director had undercounted the citations of the petitioner's work at the 
Review of the record shows that, at the time of filing, the petitioner had documented 14 citations 
(including a small number of self-citations) of work he produced at the 
The second RFE response documented 22 such citations. 
The director denied the petition on July 2, 2014, stating that the petitioner had not shown that the 
additional citations pre-date the filing of the petition. 8 C.P.R. § 103.2(a)(1) requires the petitioner 
to show eligibility at the time of filing. An applicant or petitioner must establish that he or she is 
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eligible for the requested benefit at the time of filing the benefit request. 8 C.P.R. § 103.2(b)(1). 
The director cited Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg'l Comm'r 1971), which held that 
events after the filing date cannot retroactively qualify a previously ineligible beneficiary. The 
director found that the petitioner did not provide sufficient context for the citation figures provided. 
The director also found that the petitioner did not provide enough information about his current work 
at the 
On appeal, the petitioner states that the director should have considered the petitioner's body of:Work 
as a whole, but instead "focused only on petitioner's most recent contributions at the 
" New documentation submitted in response to an RFE from the AAO shows that the 
petitioner's citation total has risen to 227. 
The director was correct to assert that the petitioner must be eligible at the time of filing, and cannot 
become eligible at a later date owing to subsequent events. In this instance, however, the citation 
figures were already substantial at the time of filing and are indicative of the petitioner's influence 
on the field. Later submissions show that citation of the petitioner's work - both at 
and at the - continues to influence the work of other researchers. 
The lower citation rate of the petitioner's latest work can be attributed to its being more recent. The 
lSI Web of Knowledge table shows that citations accumulate, and thus citation rates increase over 
time. 
The petitioner has submitted documentary evidence demonstrating that the majority of his submitted 
articles have shown above-average citation rates for his field of research. In addition, the letters 
provided by the petitioner give context to the petitioner's published work and explain its importance 
in ways that the record otherwise corroborates. We find this evidence sufficient to demonstrate that 
the petitioner's research has had a degree of influence on the field of bioanalytical chemistry. We 
therefore find that the record justifies projection that the beneficiary will serve the national interest 
to a significantly greater degree than would an available U.S. worker having the same minimum 
qualifications. 
III. CONCLUSION 
As discussed above, the evidence in the record establishes that the benefit of retaining this beneficiary's 
services outweighs the national interest that is inherent in the labor certification process. Therefore, on 
the basis of the evidence submitted, the petitioner has established that a waiver of the requirement of the 
job offer and labor certificaiton will be in the national interest of the United States. 
In visa petition proceedings, it is the petitioner's burden to establish eligibility for the immigration 
benefit sought. Section 291 of the Act, 8 U.S.C. § 1361; Matter of Otiende, 26 I&N Dec. 127, 128 
(BIA 2013). Here, the petitioner has met that burden. 
ORDER: The appeal is sustained and the petition is approved.