sustained EB-2 NIW Case: Biochemistry

US. Department of Homeland Securitv 
--~ 
U.S. citizenship and Immigration ~ervicis 
L 
iafjring data deleted to 
 Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
pevmt clearly unwmanted 
invasion of personal ?r!v3~; 
 U. S. Citizenship 
and Immigration 
FILE: Office: TEXAS SERVICE CENTER Date: SEP 1 8 2009 
SRC 07 800 21336 
IN RE: 
 Petitioner: 
Beneficiary: 
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: 
SELF-REPRESENTED 
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. 
cting Chief, Administrative Appeals Office 
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 
sustain the appeal and approve the petition. 
The petitioner seeks to classify the beneficiary 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 beneficiary seeks employment as a research associate at the University of North Carolina, 
Chapel Hill (UNC-CH). 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, witness letters, and published materials. 
Part 1 of the Form 1-140 petition identifies the beneficiary as the petitioner, and the director considered 
the beneficiary to be the petitioner. Review of the petition form, however, indicates that the 
beneficiary's attorney is the petitioner. An applicant or petitioner must sign his or her application or 
petition. 
 8 C.F.R. 8 103.2(a)(2). 
 In this instance, Part 8 of the electronically filed Form 1-140, 
"Signature," includes the name, telephone number, and electronic mail address of the beneficiary's 
attorney, rather than the beneficiary himself. Thus, the attorney, and not the beneficiary, has taken 
responsibility for the content of the petition. This will not affect the adjudication of the appeal, because 
nothing in the regulations precludes an attorney from filing a petition on behalf of a client beneficiary. 
Also, the record shows that the attorney who filed the petition is the same attorney who filed the appeal. 
Thus, the appeal has been properly filed by the party that filed the petition. 
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 beneficiary 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, 1 Olst 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 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. 215 (Cornrnr. 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, whose benefit to the national interest would 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 
Page 4 
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 evidence submitted with the petition showed that the beneficiary wrote seven journal articles and a 
textbook chapter, and gave numerous conference presentations. The petitioner submitted letters from 
several witnesses (such as those discussed below), describing and praising the beneficiary's research of 
cystic fibrosis. Most of the witnesses have worked directly with the beneficiary, and the remaining 
witnesses have ties to institutions in Turkey or the United States where the beneficiary has worked 
andlor studied. 
with the beneficiary during the latter's visit to the University of Manchester, England, a decade earlier. 
stated: 
I was specifically recruited to the professorial position in North Carolina for my world 
renowned expertise in the biochemistry and biophysics of mucosal surfaces, and most 
specifically the lung. I have a particular interest and expertise in a family of molecules 
called mucins. . . . In all hypersecretory lung diseases e.g. asthma, chronic bronchitis, 
cystic fibrosis [CF] these molecules play a central role in morbidity and early death. . . . 
[The beneficiary] and I have created the best biophysical and biochemical laboratory 
targeted at mucus, mucins and their role in health and disease in the lung, in the world. 
[The beneficiary] has played a crucial role in this work. He has established and 
maintained a fantastically productive mass spectrometry unit within the laboratory that 
the whole CF Center has benefited fiom. . . . 
He is in the process of making discoveries on the mucins and how they get 
proteolytically modified upon secretion. I believe that these discoveries will have 
profound consequences for our understanding of the role of the mucins in Cystic 
Fibrosis lung disease. However this is only the beginning. His work throws light upon 
fundamental issues concerning mechanisms of innate immunity in the lung and he has 
recently discovered that airways release exosome particles that carry both micro and 
messenger RNA and that these particles have a marked interaction with some influenza 
viruses. . . . 
I cannot stress enough the importance of [the beneficiary] not only to the communal 
efforts of the CF Center but also the strategic health interests of the United States. . . . 
[The beneficiary] is the direct inheritor of the vital practical skills essential to the 
prosecution of my research. 
Center at UNC-CH, stated that the petitioner "has now become an intellectual force who has discovered 
a new paradigm that describes the organized structure and functions of all the mucins on the airway 
surface with the interacting globular proteins that, in concert, generate barrier functions. No other 
investigator in the world has achieved such success." 
President and Chief Scientific Oficer of BioMarck Pharmaceuticals, Ltd., Durham, 
North Carolina, stated that the beneficiary's "discoveries have helped enormously to understand the 
highly complex role of mucus not only in cystic fibrosis but also other lung diseases such as COPD 
[chronic obstructive pulmonary disease], chronic bronchitis, and asthma." asserted that the 
beneficiary's "discovery of 'human tracheobronchial (HBE) exosomes' is probably the most fascinating 
finding pulmonary scientists have made during this decade. . . . Exosomes . . . carry in them some very 
essential information to allow one to develop new therapeutics to fight against the influenza virus." 
- now a researcher at the National Institutes of Health in Bethesda, Maryland, 
claimed to know the beneficiary "fiom his publications and presentations," although the record shows 
thatwas on the faculty of Ankara University when the beneficiary was a student there, and 
both individuals later worked in pediatric medicine at Hacettepe University at the same time in the late 
1990s. stated that the beneficiary "single-handedly established a state-of-art laboratory for 
the diseases of inborn errors of metabolism at Ihsan Dograrnaci Children's Hospital, Ankara, Turkey, 
the leading institute for pediatric metabolic diseases." 
On January 2, 2008, the director issued a request for evidence, instructing the petitioner to submit 
evidence to show that the beneficiary's prior achievements and impact justify approving the waiver. 
In response, the petitioner submitted a letter from , Director of International 
Student and Scholar Services at UNC-CH, who stated that current policy effectively prevents the 
university fiom seeking labor certifications on behalf of non-teaching staff. This explains why 
UNC-CH does not seek a labor certification on the beneficiary's behalf, but it does not demonstrate 
that a waiver of that requirement would therefore be in the national interest. If we were to accept 
this argument, then it would encourage employers to bypass the labor certification process simply by 
refusing to apply for them and then citing that policy as grounds for a waiver. Nothing in the 
legislative history suggests that the national interest waiver was intended simply as a means for 
employers (or self-petitioning aliens) to avoid the inconvenience of the labor certification process. 
Matter of New York State Dept. of Transportation at 223. 
More persuasively, the petitioner submitted documentation of independent citation of his work, as well 
as new witness letters. The second group of letters represented a broader range of witnesses than the 
first submission. , of stanford-university stated: st here are few researchers in 
the field of CF research who can match [the beneficiary's] skills." 
"extraordinary and unique abilities in the area of lung research as demonstrated by his integral role in 
the success of one of the premier lung research and treatment centers in the United States and world." 
The director denied the petition on January 20, 2009, stating: "The evidence of record does not establish 
that the [beneficiary] has accomplished anything more significant than other capable members of their 
profession holding similar credentials and conducting similar work." The director offered general 
comments acknowledging the petitioner's submission of witness letters and other materials, but the 
decision contained no specific discussion of the merits of the petitioner's evidence. 
On appeal, the petitioner submits copies of the beneficiary's latest published articles and information 
about the journals that published them. At issue, however, is not whether the beneficiary continues to 
be an active and productive researcher. The petitioner argues that the director did not give sufficient 
consideration to UNC-CH's refusal to apply for labor certification on the beneficiary's behalf, but we 
have already explained why such an argument fails to persuade. 
Arguably the most significant exhibits submitted on appeal are two new letters. -~ 
of ~rije University, Amsterdam, states: "In my opinion 
 one of the world's 
leading experts on the biophysics and biochemistry of mucins." 
 praises one of the 
beneficiary's recent articles as "one of the most creative, important and influential articles I have ever 
seen in the mucin research area. . . . [The beneficiary] has . . . set an entirely new standard of research 
methodology that is tailored to mucin research.'' 
President and Chief Executive Officer of the Cystic Fibrosis Foundation, asserts 
that the beneficiary "is one of the 5 kt mucin biochemists on the planet" (emphasis in original), and "it 
is imperative that we keep [the beneficiary] in the U.S." while states that he is not personally 
acquainted with the beneficiary, he discusses the beneficiary's work in a level of detail that indicates real 
familiarity with the beneficiary's efforts rather than the cursory review one might expect from a 
"courtesy" letter. 
The growing citation rate of the beneficiary's published work supports the assertions of several 
independent witnesses that the beneficiary stands out in his field. A number of independent 
witnesses have not merely pronounced the beneficiary to be among the best in his specialty, but have 
provided enough information to lend credence to such a claim. The beneficiary's work has clearly 
attracted sustained attention at the highest levels of CF research in the United States and elsewhere. 
The benefit of retaining this alien'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 an approved labor certification will be in the national interest of the 
United States. 
The burden of proof in these proceedings rests solely with the petitioner. Section 291 of the Act, 
8 U.S.C. tj 1361. The petitioner has sustained that burden. Accordingly, the decision of the director 
denying the petition will be withdrawn and the petition will be approved. 
ORDER: 
 The appeal is sustained and the petition is approved.