sustained EB-2 NIW Case: Bioinformatics

U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Oflice ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
~uBLIC 
SRC 07 800 21815 
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: 
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. 
John 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 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. 4 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral research fellow at the University of Michigan, Ann 
Arbor. 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 new exhibits. 
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, 10 1 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 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 (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. 
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 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 25, 2007. The initial submission included six witness letters 
deschbing the 
 work in the field of bioinfonnatics. 
 Assistant Professor - 
of the University of Michigan stated: 
I have known [the petitioner] since 2006 when she joined my research group in the 
Department of Pathology at the University of Michigan. . . . 
[The petitioner] has been doing innovative and cutting-edge research on the 
development of novel computational algorithms to study large-scale biological data. 
Page 4 
She is currently conducting proteomics research to catalog and quantify the proteins 
present in cells through computational analysis of mass spectrometry data. Proteins play 
a central role in human life, and proteinlpeptide identification is critical for prevention 
and treatment of diseases. Therefore, the results of this work have broad applications in 
drug manufacture and therapies to cure human diseases. This is an extremely 
challenging project, because it involves professional knowledge in multiple fields, such 
as genetics, computational chemistry, database operations, algorithm design, and 
programming. . . . 
[The petitioner] is currently worlung on developing computational algorithms and 
methods for mass spectrometry based peptide identification. . . . [The petitioner] 
proposes that by using suitable filters and new scoring functions, peptide identification 
can be conducted in a more accurate and faster manner than the traditional peptide 
identification tools. 
I have been collaborating with [the petitioner] in her research on peptide and protein 
identification. . . . 
[The petitioner] is currently working on developing bioinformatics algorithms and 
methods for proteomics analysis. This research has tremendous potential to United 
States healthcare market [sic]. . . . By charting the distribution of proteins, identifying 
and characterizing proteins of interest and elucidating the function of proteins in 
biochemical pathways, proteomics will boost the number of potential drug targets. . . . 
One of [the petitioner's] current projects is developing proteomics algorithm[s] for mass 
spectrometry based peptide and protein identification. [The petitioner] proposed to 
design appropriate filters to conduct peptide identification. The novel employment of 
filters in the algorithm can significantly increase the accuracy and speed of the 
identification than the traditional peptide identification tools. . . . 
[The petitioner's] contribution to the bioinformatics research cannot be underestimated 
[sic], as her work is likely to produce further breakthroughs in the area of proteomics 
and genomics data analysis, which in turn can directly speed up our search for cures for 
various chronic diseases. 
, who is "currently working as a Researcher in Natural Language Computing at Microsoft 
Research Asia, Beijing, China," met the petitioner in "2001 when she joined the doctoral program at the 
department of Computer Science at the National University of Singapore." stated: 
Page 5 
[The petitioner] is an expert in the field of bio-inspired computational algorithm design, 
and played a central role in development of computer immune system design during her 
graduate study. . . . 
[The petitioner's unique background in computer algorithm design and database data 
mining assures her success in the research of biological database search. . . . [The 
petitioner] discovered a new search algorithm for searching genome databases that 
shortlists potential matches for a given query sequence. Results have shown that [the 
petitioner's] new algorithm is 200 times faster in speed for long queries than the existing 
tools. 
The remaining three witnesses asserted independence from the petitioner. 
 of the 
University of Waterloo, Canada, stated that the petitioner's "work will provide a deeper understanding 
of the relationship between gene sequence and 
 structure, dynamics and function, and will help ti 
extract information hidden in the gene sequences of genomes, which in turn, will help develop drugs to 
fight disease." asserted that the petitioner's "findings and theories have had a strong influence 
arnon researchers in the field of bioinformatics," but rather than identify instances of this influence, 
d speculated as to where the petitioner's work "will lead." 
of Drexel University, Philadelphia, Pennsylvania, stated: 
Although I have not collaborated with [the petitioner], I was aware of her research when 
I attended her presentation at BMES 2004 conference in Pennsylvania. . . . 
[The petitioner's] compression technique significantly reduces storage size of genomic 
data, and speeds up processing time while maintaining satisfactory accuracy. . . . [The 
petitioner] also developed a computational algorithm to efficiently filter out data 
sequences with low similarity and perform efficient scanning of the sequence 
compression to find occurrences of reference words. . . . These undoubtedly significant 
research results were well received by researchers at the conference, and will help the 
development of promising new computational algorithms that search genome databases 
in a more effective way. 
- of Worcester (Massachusetts) Polytechnic Institute stated that the petitioner's 
work is "of great significance. It helps generate and analyze various large-scale biological data, and 
consequently create new databases of biological knowledge." 
The petitioner submitted a "Citation Summary" listing eighteen claimed citations to the petitioner's 
work. The "Citation Summary" identified no source for the information on the list, and the petitioner 
did not submit copies of the citing articles themselves. 
The director denied the petition on November 25, 2008, stating that the record does not show that the 
petitioner "has accomplished anything more significant than other capable members of the profession 
Page 6 
holding similar credentials and conducting similar work." On appeal, counsel argues that the director 
did not give sufficient consideration to independent witness letters submitted with the petition. 
More witness letters accompany the appeal. contends that the petitioner "is one of the 
finest scientists in the United States who have succeeded in the innovative and cutting-edge research on 
bioinformatics for proteomics." He states: 
Development in genomic research has caused an explosive growth in the size of DNA 
databases, which created strong challenge[s for] DNA data analysis. The method 
created by [the petitioner] and her colleagues overcomes this problem with a long probe 
length and relaxed matching. The importance of this invention lies in its efficiency. 
Previous methods required big servers or super-computers, while [the petitioner's] 
method enables clinicians and scientists easily to search large DNA sequence databases 
on a desktop computer. Therefore the significance of this work cannot be over 
estimated. 
Chief Operating Officer of MOZAT Pte Ltd., Singapore, states: 
[The petitioner] and I collaborated [on] a project [in] 2003 to develop new 
bioinformatics tools for large DNA data analysis, and published a paper entitled "The 
ed-tree: an index for large DNA sequence databases." . . . [The petitioner] invented an 
algorithm called the ed-tree for supporting fast and effective homology searches on 
DNA databases. . . . This excellent method has been frequently cited by other scientist[s] 
across the world . . . 14 times. 
On the subject of citations, the petitioner submits an updated citation list, this time accompanied by a 
printout from Google Scholar (htt~://scholar.~oonle.com). The printout shows 34 citations of the 
petitioner's articles. (The cited articles appeared before the petition's filing date.) The petitioner also 
submitted copies of sample articles that cite her work. The overall pattern of citations shows 
proportionately more independent citations than in the previous, unattributed list. 
One author who has cited the petitioner's work provides a witness letter on appeal. - 
of the University of Illinois at Chicago stated: 
[The petitioner] has been consistently making significant contributions in the 
development of bioinformatics techniques. One of [the petitioner's] efforts, which I 
extensively discussed and highly rated in my paper "Survey on index based homology 
search algorithms" is a . . . novel hash-based Pier method to perform efficient and 
sensitive DNA sequence similarity search. . . . As I showed in my paper, [the 
petitioner's] hash-based pier model is one of the best methods that can most effectively 
extract usefil information from data produced by . . . next-generation genome 
sequencing. 
The significance of [the petitioner's] research has been highly recognized by the 
bioinformatics research community. . . . 
In my opinion, there is more than enough evidence to show [the petitioner's] 
outstanding ability and significance in her research field of bioinformatics. Her work 
has been influential and has stimulated not only my research but the research of others. . 
. . She should be regarded as one of the best. 
article, discussed above, was published before the petition's filing date. 
I, along with other top bioinformatics scientists in UCSD, have decided to include one of 
[the petitioner's] methods in our bioinformatics software InsPecT . . . [which] has been 
widely used by biomedical researchers to identify peptides and proteins from complex 
clinical samples. . . . [The petitioner's] method will directly make [a] significant 
contribution via this platform to disease diagnosis and drug discovery in the United 
States. 
The implementation discussed by 
 took place after the petition's filing date, but other 
materials in the record show that this continues an already-existing pattern of influence within the field, 
rather than creating a completely new set of circumstances. 
Independent witnesses, both initially and on appeal, have attested to the significance of the petitioner's 
work. The citation documentation submitted on appeal provides objective evidence of the growing 
influence of the petitioner's work. Thls consistent pattern of specific and increasing influence appears, 
on balance, to be sufficient to establish a preponderance of evidence in the petitioner's favor. 
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 endeavor, 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 work rather than simply the general area of bioinformatics. The benefit 
of retaining this alien's services outweighs the national interest that is inherent in the labor certification 
process. Therefore, 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.