sustained EB-2 NIW Case: Biochemistry

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PUBLlCCOPY
U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
EAC 06 001 50522
Office: NEBRASKA SERVICE CENTER Date: AUB 0 3 ZOOl
INRE: 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. § 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.
#7~12;
~I .. Administrative Appeals Office
www.uscis.gov
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DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition, which is now before the Administrative Appeals Office on appeal. The appeal will be
sustained and the petition will be approved.
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 an alien of exceptional ability or a member of the professions
holding an advanced degree. The petitioner seeks to continue her employment as a postdoctoral
associate. The petitioner asserts that an exemption from the requirement of a job offer, and thus of an
alien employment 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, counsel submits a brief asserting that the director's request for additional evidence was not
explicit in what was needed and that the final decision does not explain why the evidence submitted is
insufficient.
As will be discussed below, not all of counsel's factual assertions are supported by the record and not
all of his legal assertions are persuasive. Nevertheless, we are persuaded that the petitioner's record of
achievement in her field, as demonstrated through moderate citation and industry interest, is sufficient
to warrant a waiver of the alien employment certification.
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 ofjob 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.
Counsel initially characterized the petitioner as "exceptional," although he did not discuss the
regulatory requirements for that classification pursuant to 8 C.F.R. § 204.5(k)(3)(ii). This issue is
moot, however , because the record establishes that the petitioner holds a Ph.D. in Biochemistry from
the University of Montreal. The petitioner's occupation falls within the pertinent regulatory definition
of a profession. The petitioner thus qualifies as a member of the professions holding an advanced
degree. The remaining issue is whether the petitioner has established that a waiver of the job offer
requirement , and thus an alien employment certification , is in the national interest.
Neither the statute nor pertinent regulations define the term "national interest. " Additionally , Congress
did not provide a specific definition of the phrase "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, 101st Cong ., 1st Sess., 11 (1989).
A supplementary notice regarding the regulations implementing the Immigration Act of 1990
(IMMACT) , published at 56 Fed. Reg. 60897 ,60900 (November 29, 1991), states, in pertinent part:
The Service 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 Dep't. of Transp., 22 I&N Dec. 215 (Comm. 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 concur with the director that the petitioner works in an area of intrinsic merit , cancer research ,
and that the proposed benefits of her work , improved cancer treatments , would be nat ional i n scope.
It remains, then, to determine whether the petitioner will benefit the national interest to a greater
extent than an available U.S. worker with the same minimum qualifications.
Eligibility for the waiver must rest with the alien's own qualifications rather than with the position
sought. In other words, we generally do not accept the argument that a given project is so important
that any alien qualified to work on this project must also qualify for a national interest waiver.
Matter ofNew York State Dep 't of Transp., 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
At issue is whether this petitioner's contributions in the field are of such unusual significance that the
petitioner merits the special benefit of a national interest waiver, over and above the visa
classification she seeks. By seeking an extra benefit, the petitioner assumes an extra burden of proof.
A petitioner must demonstrate a past history of achievement with some degree of influence on the
field as a whole. Id. at 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
As stated above, the petitioner received her Ph.D. from the University of Montreal in 2002. After
receiving her degree, with the exception of a four-month period as a professor at the Beijing
Universit of Technology, the petitioner has worked as a postdoctoral associate in the laboratory of
I Cheng at Yale University. Counsel has repeatedly noted the distinguished reputation
of Yale University and Chief of the Rheumatology Section at the university, asserts
that Yale "only takes the best scientists from around the world."· We do not question that Yale is a
distinguished educational and research institution. That said, the United States is home to several
distinguished universities and other distinguished universities exist throughout the world. Weare
not persuaded that Congress intended the national interest waiver as a blanket waiver for every
postdoctoral associate at a distinguished research institution. Nothing in Matter of New York State
Dep 't of Transp., 22 I&N Dec. at 215, suggests that mere association with a distinguished entity or
expert is sufficient to warrant a national interest waiver.
The director concluded that the petitioner had authored six published articles and other manuscripts
under review. On appeal, counsel asserts that the petitioner has actually published 11 articles and
had given an invited talk and other presentations ignored by the director. Counsel's assertions are
not supported by the record. Initially, the petitioner submitted four published articles, seven
abstracts and an unpublished manuscript. In response to the director's request for additional
evidence, the petitioner submitted five additional articles, all of which were published after the
Page 5
petition was filed, l and another unpublished manuscript. The petitioner also submitted evidence that
she presented her work after the date of filing.
The petitioner must demonstrate eligibility as of the date of filing. See 8 C.F.R. § 103.2(b)(12);
Matter of Katigbak, 14 I&N Dec. 45, 49 (Reg. Comm. 1971). As of that date, the petitioner had
authored four published full-length articles and seven abstracts that represent conference
presentations. This is the publication record we will consider.
The petitioner also relies on reference letters. Citizenship and Immigration Services (CIS) may, in
its discretion, use as advisory opinions statements submitted as expert testimony. See Matter of
Caron International, 19 I&N Dec. 791,795 (Comm. 1988). However, CIS is ultimately responsible
for making the final determination regarding an alien's eligibility for the benefit sought. Id. The
submission of letters from experts supporting the petition is not presumptive evidence of eligibility;
CIS may evaluate the content of those letters as to whether they support the alien's eligibility. See id.
at 795. CIS may even give less weight to an opinion that is not corroborated, in accord with other
information or is in any way questionable. Id. at 795; See also Matter ofSoffici, 22 I&N Dec. 158,
165 (Comm. 1998) (citing Matter of Treasure Craft of California, 14 I&N Dec. 190 (Reg. Comm.
1972)).
In evaluating the reference letters, we note that letters containing mere assertions of industry interest
and positive response in the field are less persuasive than letters that provide specific examples of
how the petitioner has influenced the field. In addition, letters from independent references who
were previously aware of the petitioner through her reputation and who have applied her work are far
more persuasive than letters from independent references who were not previously aware of the
petitioner and are merely responding to a solicitation to review the petitioner's curriculum vitae and
work and provide an opinion based solely on this review.
- discusses both the petitioner's Ph.D. research at the University of Montreal and her work
~ratory at Yale. At the University of Montreal, the petitioner studied estrogen response
elements, which can mediate against activity of anti-estrogens in human endometrial cells. _
•
asserts that the petitioner's work "led to rapid progress in understanding the biochemical and
mo ecular basis for certain human diseases such as breast cancer." While the record does not support
counsel's assertion that the petitioner has been cited 30 times, the petitioner did submit evidence that
her article on anti-estrogens had been cited 20 times, 18 times by independent research laboratories.
explains that previous anti-cancer drugs had different targets on tumor cells, leading to
severe side effects. The petitioner demonstrated that tylophorine analogs "down regulate the function
ofNFKB in tumor cell lines" and, thus, are a "unique new type of anti-cancer compound." _I
further states that the petitioner's findings also have implications for NFKB related diseas~
1 The oldest, published in 2006 in Molecular Endocrinology, was published online October 20,2005, 17 days
after the petition was filed.
Arthritis and Lupus. Finally ,_asserts that the petitioner 's work "led to the discovery of a
whole new class of compounds " to treat liver and pancreatic cancer.
, a professor at the University of Tennessee and the petitioner's collaborator , asserts
that the petitioner's work with NFKB "is currently being taken up by a company for clinical trials in
humans , which is a further indication of its importance and promise ."
In response to the director 's request for additional evidence and on appeal , counsel asserts that a drug
"discovered" by the petitioner is "currently in clinic ." characterizes the drug as an
"anti-cancer compound " and references a letter by , Director of Computational
Chemistry at Achillion Pharmaceuticals. acknowledges that the Department of
Pharmacology at Yale has "successfully developed many anti-virus and anti-cancer compounds ,
particularly , [the petitioner] in her lab. " _ then states :
Our company licensed .one drug from her lab which now is almost done with clinical
trial stage two. We are very thankful to [the petitioner] for her work on this drug
which will soon be marketed.
letter is somewhat ambiguous as he later discusses an HIV drug on which the
petitioner is not alleged to have worked. Moreover it is not clear why, if Achillion Pharmaceuticals
is pursuing the petitioner 's drug, Senior Director for Anti~overy
at the company , did not mention this fact in his initial ~heless,_letter
appears credible and consistent with the initial letter from _
The record in this matter would be bolstered by patents or patent applications for drugs developed by
the petitioner and "licensed" by Achillion Pharmaceuticals. Nevertheless , we cannot ignore that the
petitioner is the author of articles and abstracts discussing these drugs . Moreover , the petitioner's
citation record is consistent with the claims made in the reference letters .
It does not appear to have been the intent of Congress to grant national interest waivers on the basis of
the overall importance of a given field of research, rather than on the merits of the individual alien.
That being said , the above testimony, and further testimony in the record, establishes that the
biomedical community recognizes the significance of this petitioner 's research rather than simply the
general area of research. The benefit of retaining this alien 's services outweighs the national interest
that is inherent in the alien employment certification process . Therefore , on the basis of the evidence
submitted, the petitioner has established that a waiver of the requirement of an app roved alien
employment 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. § 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 .
Page 7
ORDER: The appeal is sustained and the petition is approved.