sustained EB-2 NIW Case: Biochemistry

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PUBLIC COPY 
U.S. Department of Homeland SecuriQ 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 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. 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. 
I) 
f~ohn 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 appeal 
will be sustained and the petition will be approved. 
The petitioner seeks classification pursuant to section 2030>)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. !j 11 53(b)(2), as a member of the professions holding an advanced degree. At the 
time he filed the petition, the petitioner was about to begin a postdoctoral research position at the 
University of Texas at Austin (UTA). The petitioner asserts that an exemption fiom 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 fiom counsel and additional evidence. 
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 (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 ths 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 
qualiQ 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 (Cornmr. 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, whde the national interest waiver hnges 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. § 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. 
In a statement accompanying his initial submission, the petitioner described his work: 
I have been performing research in the field of membrane protein structure and function 
for 10 years. . . . The membrane proteins are located in the oily two-layered membrane 
that holds the cell together, and account for one-third of the genome of any organism. 
Membrane proteins are challenging to study, but critical to understand because they 
represent 60 percent of drug targets and carry out essential processes in the cell, such as 
photosynthesis in plants, and nerve impulses and hormone action in animals. My 
Page 4 
research has been mostly focused on two critically important membrane complexes: the 
cytochrome b6f complex in plant chloroplast, and the large conductance ca2+-activated 
potassium (BKc,) channel in mammalian cells. The former plays a pivot[al] role in the 
process of photosynthesis. . . . The latter is critically involved in various physiological 
processes such as regulation of neuronal excitability and neurotransmitter release in the 
central nervous system, contractile tone of smooth muscles, frequency tuning of auditory 
hair cells, hormone secretion, and innate immunity. The abnormality of BKca channels 
can cause many diseases, such as epilepsy, neuronal ischemia, hypertension, urinary 
incontinence, and progressive deafness. 
. . . Therefore, the BKca channel is considered as a drug target for a broad range of 
diseases. . . . 
So far, I have irnmuno-purified the BKca channels from rat brain to a large amount and 
high purity. I have . . . identified more than 29 in vivo phosphorylation sites . . . of the 
rat brain BKca channels. I have discovered several important functional roles and 
pathways of these phosphorylation sites. . . . The result fiom this research greatly 
extends our understanding of the regulatory mechanism of neuronal excitability, and 
helps in development of new drugs targeting at the BK channels. 
The petitioner submitted letters fiom several witnesses, including but not limited to his past supervisors. 
the petitioner's principal doctoral advisor at Purdue University, West 
stated: 
[The petitioner's] Ph.D. research was focused on one critically important membrane 
protein complex, the cytochrome b&f complex, which is a delicate molecular device in 
the photosynthetic membrane that contains at eight [sic] tightly bound protein subunits 
and multiple inhibitor/drug binding sites. . . . His numerous findings from this research 
project have greatly advanced our view of trans-membrane trafficking, and the binding 
and action of drug-like chemicals within membrane proteins. 
The cytochrome bdcomplex plays a pivotal role in the process of photosynthesis. . . . 
[The petitioner] has conducted in-depth research to study the mechanism of 
electron/proton transfer within the cytochrome bdcomplex. He also carried out first- 
rate studies on the unique structural and hnctional properties of single copies of solar 
energy absorbing pigments in the cytochrome b&fcomplex. His novel discoveries have 
provided a better understanding of membrane energy transduction in photosynthesis, and 
important input into the effort to harness photosynthesis to improve crop yleld and to 
increase the efficiency of usage of renewable solar energy. 
. . . I feel fortunate to have had [the petitioner] in my laboratory. He has done an 
outstanding job and made a very substantial impact in the research field of membrane 
protein structure and function. . . . His research works are well-recognized nationally and 
internationally as indicated by a large number of citations (more than 80) of his papers 
by other researchers in this field. . . . [The petitioner's] significant accomplishments are 
far above what is expected from his peer group and have established him as a nationally 
and internationally outstanding researcher in the field of membrane protein structure and 
function. 
California, Davis (UCD). Prof. statedf 
Because of [the petitioner's] distinguished achievements during his Ph.D. study, I 
invited him to join my laboratory so that he could apply his wealthy knowledge and 
unique expertise of membrane protein structure and function to our studies of ion 
channel proteins that are involved in nervous system disorders. [The petitioner] is an 
outstanding and exceptionally skilled scientist whose groundbreaking research work is 
of vital importance to our country's biomedical research efforts and improvement of 
public health in national scope. His accomplishments to date have far exceeded those of 
the vast majority of his peers as evidenced by his productive publications in premier 
scientific journals and ftequent citations of his works by other researchers. . . . 
[The petitioner's] research work aims to tackle the problems of neurological diseases. 
. . . As we know, all neuronal activities in the brain, e.g., consciousness, learning and 
memory, are governed by the opening and closing of a series of ion channel proteins in 
the neuronal cell surface that are permeable to specific ions. Compared to all other ion 
channels, the BK channel is a unique potassium channel that can generate exceptionally 
large electrical current. . . . Therefore the BK channels play an essential role in the 
regulation of neuronal excitability, neuronal firing, and neurotransmitter release in the 
brain. . . . [The petitioner] has independently . . . define[d] the biochemical and 
biophysical properties of the BK channel in brain and how this channel is dynamically 
regulated. What we learned &om his research project is critically important for 
development and application of new drugs targeting at the BK channels for many mental 
and neurological diseases. . . . 
[The petitioner] has made the milestone discovery that brain BK channels exist in 
several different splicing forms and are extensively phosphorylated at multiple sites in 
mammalian brain. He has assembled a comprehensive and robust data set of alternative 
splicing isoforms and phosphorylation sites on rat brain BK channels. These data 
represent a gold mine of information for determining how neuronal activity is 
dynamically modulated by the BK channels. 
When wrote his letter on June 28,2007, he gave no indicw he ew the petitioner 
would be leaving UCD for UTA in a little over one month. Rather, 
 implied that he 
expected the petitioner to remain at UCD for some time, when he stated: "I am currently submitting a 
new NIH research grant in which [the petitioner] is a key contributor of the proposed projects." 
Page 6 
[The petitioner] is currently a Postdoctoral Research Fellow in - 
Laboratory . . . and will soon join my laboratory . . . on August 1,2007. [The petitioner] 
has achieved great distinction and has made many breakthroughs in his elegant research. 
Because of [the petitioner's] outstanding research accomplishments, unique expertise 
and exceptional abilities, I invited him to my laboratory as a visiting scholar fi-om Nov. 
2006 to Mar. 2007 to work on a collaborative project to characterize BK channel 
phosphorylation electrophysiologically. . . . This seminal research work opens a road for 
prevention or cure of neurological diseases through intervention of the regulatory 
process of the BK channels. . . . Because of his excellent performance, I further invited 
him to formally join my laboratory to continue his pioneering research on the dynamic 
regulation of cellular excitability through ion channel hction. 
The petitioner also submitted letters from witnesses at other institutions. f 
the University of California, San Francisco, is a member of the prestigious National Academy of 
Sciences. The record also indicates that 1 has won several significant prizes for his work, 
including a $125,000 share of the 2006 Gruber Prize for Neuroscience. 
 stated: 
Although I am not within [the petitioner's] circle of colleagues or acquaintances, I am 
well aware of [the petitioner's] research because of our mutual research interest in 
neuronal channel proteins. I have reviewed his documents and invited hm to give an 
oral presentation of his seminal research work to my colleagues and lab members in my 
department. I was very impressed by the research works he has performed within the 
last few years. He has demonstrated unique expertise and exceptional accomplishments 
in his breakthrough research. . . . 
[The petitioner] is currently at the forefront of studying ion channels to provide better 
solutions for drug design for prevention and cure of neurological and psychiatric 
diseases. . . . 
His current project, focusing on BK channels, has provided intriguing and important 
insights as to how phosphorylation and alternative splicing of BK channels regulates 
excitability of neurons. . . . He has made the surprising discovery that brain BK channels 
are extensively phosphorylated and alternatively spliced. . . . Such findings are important 
to understanding the fundamental mechanisms underlying molecular regulation of 
electrical excitability, and are also critically helpful for the development of novel 
therapeutic approaches for mental and neurological disorders. 
Page 7 
Although I have not personally worked with [the petitioner], I am familiar with his 
research because of our common area of research interest. . . . 
[The petitioner's] research has been well received and lauded in the fields of membrane 
structure and function and membrane bioenergetics, as evidenced by more than 100 
citations of his papers by other researchers in these fields. . . . 
[The petitioner] has made a highly distinctive and invaluable contribution to a research 
field that is vital to human health and the development of sustainable and renewable 
energy resources. 
-Staff Scientist at the Lawrence Berkeley National Laboratory, Berkeley, 
I have never worked with [the petitioner], and in fact I do not know him personally. My 
evaluation is based on his outstanding professional contributions to the field of 
biochemistry/biophysics in the subdiscipline that I have been specializing in. I am well- 
acquainted with his research because of our joint research interest in membrane proteins 
involved in biological energy transducing processes. I have carefirlly read all his 
research papers because of their importance to our research field, and I have cited some 
of his manuscripts in my own publications. . . . 
Surely, the amazing number of times (100) his publications have been cited by other 
scientists in the last few years reinforces my personal opinion that [the petitioner] is a 
prominent young scientist of extraordinary scientific capabilities and outstanding 
accomplishments. 
Although I have no personal ties to [the petitioner], I am quite familiar with his research 
interest and works and scientific expertise. I first became acquainted with [the 
petitioner's] research during an international conference . . . while he was still a Ph.D. 
student at Purdue University. . . . 
The vast molecular complexity of mammalian brain tissue has posed tremendous 
technical obstacles for comprehensive proteomics analysis. [The petitioner] has worked 
on this problem arduously and overcame these obstacles with great expertise. . . . 
As a young scientist, [the petitioner] has achieved spectacular accomplishments in the 
research field of membrane protein structure and function. 
Page 8 
The petitioner identified 101 citations of his published work. About 30 of the citations are self-citations 
by the petitioner andlor his collaborators, leaving approximately 70 independent citations. (The AAO 
cannot determine the exact number of self-citations because many authors are identified only by 
surname and first initial, and some citing authors with common surnames may simply have similar 
names to those of the petitioner's co-authors.) The petitioner submitted first-hand documentation of 
only a handll of these citations. The citation list included the World Wide Web address for the citation 
database, but the site is a subscription-only site that the director and AAO cannot access. 
The director denied the petition on May 6, 2008, acknowledging the petitioner's "extensive experience 
within the field of biochemistry and molecular biology" and "unique understanding of ion protein 
channels," but concluding that "the record does not persuasively establish that the work being 
performed by the self-petitioner could not be accomplished by a U.S. worker possessing the same 
minimum qualifications." 
On appeal, counsel asserts that the petitioner had claimed "over 100 worldwide citations" that were not 
acknowledged in the director's "boiler-plate denial letter." Counsel also observes that the director did 
not issue a request for evidence, even though the record contained no clear evidence of ineligibility. 
The petitioner submits a revised citation list, showing 128 citations of his work, along with printouts 
from the IS1 Web of Science database to corroborate the information on the new list. 
Counsel Mer contends that the director did not give sufficient consideration to the letters in the 
record, several of which were from prominent, independent witnesses. Several of these witnesses had 
affirmed that the petitioner's large and growing number of independent citations demonstrate the 
petitioner's impact on his field. 
We do not agree with every point raised by counsel. For instance, counsel points to an unpublished 
AAO decision fkom 2002 "finding that 16 independent citations indicate 'widespread and lasting 
influence' on the field, and therefore warrant a waiver of Labor Certification." While 8 C.F.R. 
$ 103.3(c) provides that AAO precedent decisions are binding on all USCIS employees in the 
administration of the Act, unpublished decisions are not similarly binding. As each decision is 
considered according to its own merits, the AAO has not designated any arbitrary number of 
independent citations as the cutoff point for waiver eligibility. A minimally-cited researcher may 
establish eligibility through other means. Conversely, it is conceivable that heavy citation may not 
suffice to compensate for other adverse or disqualifying factors. It has never been settled AAO policy 
to sustain the appeal of every researcher with at least sixteen independent citations to his or her credit. 
Furthermore, while counsel is correct in observing that the director issued no request for evidence, the 
issuance of such a request is not required, pursuant to 8 C.F.R. 5 103.2(b)(8)(iii). Accordingly, the 
director's decision not to issue a request for evidence in this case is not, itself, an error that warrants 
reversal of the decision. 
That being said, upon consideration of the evidence presented, the AAO finds that the evidence 
submitted is sufficient to establish eligibility. Credible witnesses of unquestionable expertise have 
attested to the petitioner's influence in his field and affirmed that the petitioner's high citation rate 
commands attention and respect. The director cited no countervailing factors, instead simply declaring 
the undescribed evidence to be inadequate. 
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 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. $ 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.