sustained EB-2 NIW Case: Biochemistry

identifying data aeicieu 
prevent cleariy unwarranted 
invasion of personal privacy 
PUBLIC COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
OfJice ofAdministrative Appeals MS 2090 
Washington. DC 20529-2090 
J 
FILE: Office: TEXAS SERVICE CENTER Date: OCT 2 2 2009 
-- -- 
SRC 07 270 54078 
IN RE: 
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 1 53(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. 
Urry Rhew 
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 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. The 
petitioner seeks employment as a postdoctoral fellow at Emory University, Atlanta, Georgia. 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 exhibits relating to scholarly publications. 
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 
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 (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. 21 5 (Commr. 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. 
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. The petitioner described his work in chemistry in 
technical detail, and asserted that his work had resulted in four published articles that have been "cited 
nearly 50 times in various scientific articles, book chapters and reviews." The petitioner documented 
these citations of his published work. 
The petitioner submitted several witness letters, mostly from witnesses connected with the petitioner's 
past work at Carnegie Mellon University (where the petitioner earned hs doctorate) and his current 
the petitioner's doctoral studies there. He stated: 
While [the petitioner] was a Ph.D. student in my laboratory, he worked on enzymes 
from the soil bacterium Nitrososmonas europeae [sic - the correct spelling is 
"europaea"], which are critical for the conversion of ammonium based fertilizers to 
nitrogen containing compounds that can be utilized by plants. . . . [The petitioner's] 
research on a new class of enzymes containing multiple heme cofactors has shed light 
into the mechanism of these environmentally relevant oxidation processes. . . . 
[The petitioner later] chose to work with 
 [at Emory] to 
elucidate structural properties of two clinically important mitochondria1 membrane 
- - 
bound flavoenzymes (monoamine oxidase A, &d B)-in their detergent solubilized and 
membrane bound forms, using spectroscopic techniques. These enzymes are 
responsible for the oxidation of neurotransmitters in our body and have been implicated 
in age related neurological disorders. . . . Understanding the structural properties of these 
enzymes in their membrane bound forms will be beneficial in developing selective 
inhibitors for these enzymes for treating these neurological conditions world wide. 
now an Associate Professor at the Universi of Pittsburgh, formerly worked in the 
laboratory adjacent to laboratory. dated that the petitioner's "research on 
multiheme proteins from the soil bacterium Nitrosomonas europaea . . . can be considered as pioneering 
works in the field of heme protein spectroscopy." asserted that the petitioner's "findings 
represent the first step towards developing new methods to regulate ammonia metabolism by N. 
europaea, which can be expected to ultimately reduce our fertilizer use in agriculture." 
stated: 
Over his Ph.D. training period at Carnegie Mellon University, [the petitioner] developed 
an expertise in the spectroscopic and structural properties of environmentally important 
enzymes. This expertise has been further extended in his postdoctoral training to 
medically important membrane bound enzymes found in the mitochondrion. . . . This 
work has received national and international attention from both academic and 
pharmaceutical industries. 
One of~collaborators, - of the University of Pavia, Italy, 
stated that the petitioner's "spectroscopic studies . . . [ofl these membrane bound enzymes [are] 
unprecedented . . . and have already greatly improved ow understanding [ofl the structural properties of 
these proteins in the membrane." 
petitioner's] scientific impact already, as I have been following his career for the past three years, . . . I 
have read all of [the petitioner's] scholarly papers, and can attest that he has made a major contribution 
to the field of bioinorganic chemistry." 
of the University of Dublin, Ireland, first met the petitioner at a 2006 workshop 
and has "interacted with him on several occasions" and "followed the development of his work with 
great interest. " stated that the petitioner's "findings have impor& implications for the 
global pharmaceutical research on developing specific clinically important inhibitors for" monoamine 
oxidase isoenzymes. 
On September 25, 2008, the director issued a request for evidence (WE), instructing the petitioner "to 
further clarify how the beneficiary's research is greaterldifferent from [his] peers who have conducted 
similar research." In response, the petitioner demonstrated that the total number of citations of his work 
had risen to 64, the great majority of them being independent citations. 
The petitioner stated that his "recent spectroscopic work . . . has been featured in the 'Faculty of 1000 
Biology' as a technological advancement in understanding the structural properties of membrane bound 
proteins in their natural environment." The "Faculty of 1000" profile relates to an article published in 
2008, after the petition was filed. 8 C.F.R. 8 103.2(b)(l) requires the petitioner to establish eligibility as 
of the petition's filing date. Also, the record shows that the article was "[slelected by- 
on February 1, 2008, several months after had written a letter on the petitioner's 
comments, did not disclose his own ongoing collaboration 
with 
 group. (The selected article cites several of the collaborative articles.) 
New witness letters accompanied the petitioner's response to the WE. - 
at Pfizer Global Research and Development, stated: 
[The petitioner] has conducted postdoctoral research on a class of enzymes called 
monoamine oxidases (MAOs). These enzymes play important roles in human and 
animal health, and are linked to several pathological conditions including depression, 
schizophrenia, Parkinson's disease, and nicotine addiction. . . . Efforts to discover new 
MA0 inhibitors are slowed by a lack of understanding of the basic molecular 
architecture of the enzyme and resultant difficulties in selectively targeting one type of 
MA0 versus another. The insights provided by [the petitioner's] work go to the heart of 
these problems and therefore have national implications for human health. 
filing date: 
[The petitioner] is currently a postdoctoral research scientist in my laboratory working 
on a project funded by the National Institutes of Health (NIH) under the "Discovery of 
Novel Epigenetic Marks" area of the NIH Roadmap Epigenomics program. . . . 
Epigenetics is the study of how cells control gene expression by adding chemical 
modifications to DNA and their associated histone proteins. These modifications 
control genetic activity by changing the structure of chromosomes and can affect gene 
expression as greatly as changes in the DNA sequence. We believe that understanding 
how and when epigenetic processes control genes during different stages of 
development and throughout life will lead to more effective ways to prevent and treat 
disease. 
The director denied the petition on November 6, 2008, stating: "The evidence of record does not 
establish that the self-petitioner has accomplished anything more significant than other capable 
members of their profession holding similar credentials and conducting similar work." Regarding the 
petitioner's citation record, the director stated: "this is not unusual or different from other researchers 
who have had their work referenced or cited." 
On appeal, counsel protests that the director "failed to properly evaluate the evidence in the record," 
relying instead on "general and vague assertions." We agree with this assessment. The director devoted 
only one paragraph of the decision to details of the petitioner's work. 
We also agree with counsel's assertion that the director should have given greater weight to the many 
independent citations of the petitioner's work, which establish the extent to which other researchers have 
relied upon his work. The record also shows that others have cited the petitioner's work in different 
areas, ranging from agriculture to brain chemistry, indicating that the petitioner's influence did not 
diminish after one particular temporary project. 
Heavy citation is not an automatic sign of eligibility. If a researcher has produced numerous papers, 
and only one has been cited with any frequency, then it is not clear that the researcher has had consistent 
impact. The same can be said if the citation of a researcher's publications drops off after a significant 
shift in the focus of the researcher's work. Also, of course, it is possible that other researchers cite a 
given paper for the purpose of refuting it. None of these, however, appears to be the case here. The 
citations, letters, and other evidence in the record point to the petitioner's consistent and growing 
influence in the field of chemistry. 
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 evidence in the record establishes that the scientific community recognizes the 
significance of this petitioner's research rather than simply the general area of research. The benefit of 
retaining the petitioner'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. 5 1361. The petitioner has sustained that burden. Accordingly, the AAO will withdraw the 
director's decision and approve the petition. 
ORDER: 
 The appeal is sustained and the petition is approved.