sustained EB-2 NIW Case: Biological Science

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DATE: JAN 05 2012 
INRE: Petitioner: 
Beneficiary: 
OFFICE: TEXAS SERVICE CENTER 
U.S. Department of Homeland Security 
u.s. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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. § l153(b )(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTIONS: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
Perry Rhew 
Chief, Administrative Appeals Office 
www.uscis.gov 
-Page 2 
DISCUSSION: The Director, Texas Service Center, denied the employment-based immigrant visa 
petition and certified the decision to the Administrative Appeals Office (AAO) for review. The AAO 
will withdraw the director's decision and approve the petition. 
In this decision, the term "prior counsel" shall refer to 
at the time the petitioner filed the petition. The term "N",r'cpl" 
record. 
who represented the petitioner 
refer to the present attorney of 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.c. § IIS3(b)(2), as a member of the professions an advanced degree. The 
petitioner seeks employment as an assistant research professor at 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. 
In response to the certified decision, the petitioner submits a brief from counsel and supporting exhibits, 
mostly duplicating prior submissions. 
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. 
Page 3 
Neither the statute nor the pertinent regulations define the tenn "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., 1st Sess., II (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 ofthis 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 
qualitY 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, 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) defmes "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 offer/labor 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 qualitY 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 Form 1-140 petition on April 27, 2010. In an accompanying statement, prior 
counsel stated: 
-Page 4 
[The petitioner's] petition is based on his major achievements in the sciences in the 
specialized field of Biological Science with particular emphasis on prophylactic and 
therapeutic vaccines for cancer and infectious diseases. Cancer vaccine is a 
challenging line of research, with only 2.3% ... of cancer vaccine clinical trials 
showing the modest improvement in this urgently demanded/unmet field. The major 
attempt in the field has been the use of various vaccination/immunotherapy methods. 
So far, the most approached methods have been, a) viral vector based vaccination, b) 
peptide-based vaccination, and c) non-viral genetic immunization. [The petitioner] is 
among the few investigators who have extensively examined all of these methods and 
been able to improve upon all of them. 
The petitioner submitted copies of patent documents and other materials relating to his work. The 
existence of these patents is not presumptive evidence of eligibility. The petitioner must show the 
significance of the patented work. See Matter of New York State Dept. of Transportation, 22 I&N 
Dec. 221 n.7. 
The petitioner submitted copies of eleven of his published scholarly articles, and evidence of the 
. . of a twelfth article. The petitioner also submitted printouts from the SCOPUS database 
indicating that the database contained 500 citations of the petitioner's 
articles. More detailed SCOPUS printouts identified 72 of the citing articles. Seven of those 72 
citations are self-citations by the petitioner and/or his co-authors. 
The petitioner submitted several witness letters, 
. on his behal f. 
of them dating from June 2009 when another 
pre:sident of research and development 
During his post as [the petitioner 1 produced 
three peer-reviewed manuscripts that were published in prestigious scientific journals. 
In the scientific field, the first and last authors of published scientific works indicate 
the most significant contributions to the body of work. [The petitioner] was the first 
author for two of the publications, and senior author on the third. This indicates that 
he performed the most significant portion of the published work during his tenure at 
-
stated: 
As his close collaborator, I am pleased that in less than 2 years, [the petitioner] has 
not only successfully established also has 
brought cutting edge vaccination many principle [sic] 
investigators well as external institutions and industries. 
Indeed, the three non-viral methods for "genetic vaccination" that he has invented or 
-Page 5 
improved/established, in vivo electroporation, liposome based, and a novel targeted 
nanoparticie platform have resulted in two patent applications [and] several research 
collaborations ... with major biotech and pharmaceutical companies. In fact, [the 
petitioner] has been the leader and main player in the development of the patent using 
this technology. 
stated that the petitioner "provides the driving 
common on pel:iti()m:r and __ collaborate, and that the 
petitioner "has developed the basic ideas behind our projects and should be considered the main 
author of our patents." _ provided little information about the joint projects, except to 
state that they "deal[] with gene delivery and vaccination." 
[The petitioner] has developed several new novel methods for vaccination either via 
new inventions/patents or by partnership with industry including a vaccine delivery 
platform an in vivo electroporation 
vaccme adjuvanted oil vaccine 
delivery from a novel nanoparticle based vaccination platform 
that he has . has been the driving force and mind behind all 
these efforts. 
called the 
petitioner "a collaborator" with that company, and stated that the petitioner "has successfully used 
our system in DNA vaccine " and that the petitioner "is a prominent scientist in the 
cancer vaccine development provided few details about the petitioner's work except 
to emphasize that it . "system." 
stated that he and the 
petitioner "enter[ ed] into a partnership to jointly apply for an NIH grant to develop novel 
immunological reagents for monitoring cell mediated immune response." It is not clear that this 
joint effort had begun before _ wrote this letter in June 2009. _ attested to the 
petitioner's "expertise in the Immunology field" but provided no other details about his work. 
[The petitioner] published the first report that showed the interleukin-IO feedback 
mechanism that regulates immune responses. This has essential applications in the 
design of protective vaccines. This publication in the Journal of Immunology has 
been cited more than 100 times .... 
-Page 6 
He employs cutting edge techniques to improve existing vaccination/immunization 
and related immunodiagnostic methods. [The petitioner] is working on non-viral 
methods for (cancer) vaccine delivery and immunomonitoring of vaccine efficacy 
with a focus on the use of nanoparticles. . . . [The petitioner] was able to file 
invention disclosures and patent applications on potent nanoparticle based vaccine 
delivery platforms. The platform has the potential to become a revolutionary 
immunomonitory method that will dramatically expedite the way vaccines are 
evaluated. 
The record supports _ assertion that the petitioner's paper 
has earned more than 100 citations. The was the first author 
( 
The March 14, 2010 SCOPUS printout showed 123 citations of that 
article. 
On January 19, 2011, the director issued a request for evidence (RFE), instructing the petitioner to 
submit further evidence to meet the guidelines set forth in Matter of New York State Dept. of 
Transportation. l In response, counsel asserted that the petitioner's "publication record is immense, 
with over 400 citations" (counsel's emphasis), and claimed that the director had disregarded 
substantial evidence ofthe petitioner's international reputation in his field. 
The petitioner submitted copies of older letters attesting to his involvement 
nroces:s. and new letters intended to establish his rep,ut2ltion. 
stated that, after he saw a conference 
presentation by the petitioner, "1 approached [the petitioner] to apply his nanoparticle based vaccine 
platform in our laboratory. We recently have initiated a scientific collaboration to use his 
technology in our camelid model in order to generate monoclonal antibodies that will be used for 
essential immunological studies." 
stated: 
Many research laboratories (like ours) and pharmaceutical companies are desperately 
looking for ways to enhance the delivery of DNA vaccines or delivery of vaccines in 
general. [The petitioner] is among [the] few who have performed extremely 
important research focusing on solving this problem by nanoparticle platforms that 
escort DNA vaccines to lymph nodes of the host where they can do their job. He has 
novel targeted-nanoparticles that bind to DNA and home them into antigen presenting 
cells thereby increasing the efficacy of DNA vaccines dramatically. We have been 
I In the same notice. the director also instructed the petitioner to submit evidence of exceptional ability in the sciences as 
described in the regulation at 8 C.F.R. * 204.5(k)(3)(ii). Because the director subsequently acknowledged that the 
petitioner readily qualifies for classification as a member of the professions holding an advanced degree, discussion of 
exceptional ability is moot. Both classifications full under section 203(b)(2) of the Act. Detailed analysis of the 
exceptional ability regulations would not affect the ultimate outcome of the present decision. 
Page? 
collaborating in making vaccines for Leishmaniasis, one of the world health concerns 
for which there is no vaccine available. We started collaborating more than a year 
ago and soon obtained very promising results .... His platfonn has shown similar 
unprecedented results when [it] was used in melanoma or breast cancer mouse 
models. 
stated that "the US Army has a 
strong interest" in some of the petitioner's vaccine projects, but the record contains no Army 
documentation or letter from any Army official to confirm this claim. 
Many of these letters are from collaborators rather than independent witnesses. At the same time, 
the AAO cannot ignore that the letters show that researchers from around the world have actively 
sought out the petitioner as a collaborator. Like the petitioner's significant citation record, these 
letters strongly demonstrate that other researchers rely on the petitioner's work. 
The director denied the petition on June 14, 2011. In the IS-page certified decision, the director 
quoted from several witness letters and stated that the letters "offer strong but general praise for [the 
petitioner's] research" and did not show that the petitioner is "primarily responsible for [his] 
collaborative research." The director asserted, without explanation, that the petitioner had not 
published enough articles to influence his "field on a broad scale." Regarding the citation of the 
petitioner's work, the director acknowledged that the petitioner had documented several hundred 
citations, but had shown only 57 of those citations to be independent. 
The director noted the showing 107 citations of one article, 
entitled 
The director did not count these 
citations, because "Scopus does not list [the petitioner] among its authors." The petitioner's initial 
submission, however, had included a copy of that article, which showed the petitioner as one often 
authors. The SCOPUS printouts tend to identifY only the first five authors, with ellipses ( ... ) to 
indicate that there are additional authors. 
Likewise, the record, on its face, contradicts the director's finding that the witness letters fail to 
show that the petitioner is "primarily responsible" for his research. The petitioner is also the first 
author of many of his heavily-cited papers, including the most-cited article with 123 citations as of 
March 14, 2010. 
The AAO acknowledges the director's concerns about self-citation, and agrees that self-citation is 
not evidence of wider influence. At the same time, the AAO must also acknowledge that, where the 
petitioner did identifY individual citing articles, the great majority 0 f the citations were independent. 
Furthennore, the record indirectly supports a finding that most of the citations of the petitioner's 
work are independent rather than self-citations. The director, in the denial notice, had asserted that 
the petitioner had only published 16 articles. Even if the petitioner cited everyone of his articles in 
every other article (impossible because they were published over the course of more than a decade), 
-Page 8 
self-citation would account for no more than 15 citations in anyone article. Nine of the petitioner's 
articles, however, show more than 15 citations each, including two with over a hundred citations 
each. It is numerically impossible for most of those citations to be self-citations. 
The petitioner, in response to the certified denial, submits a list of articles (showing titles and 
authors) citing the petitioner's work. The petitioner did not identifY the source of the list. 
Nevertheless, the record contains ample evidence to show heavy citation of many of the petitioner's 
published articles. The director gave no persuasive reason to minimize the citation figures. 
Counsel, in response to the certified decision, asserts that the director did not give sufficient weight 
to the "very large number of citations of Petitioner's work by other scientists/researchers." The 
AAO agrees, and finds no support for the director's conclusion that the petitioner had shown only a 
"moderate" number of citations. 
The AAO also agrees with counsel's argument that the director failed to consider the substance of 
many 0 f the witness letters. It is true (and counsel did not contest) that letters themselves are not 
primary evidence of eligibility. Nevertheless, where (as here) such letters corroborate and amplify 
objective, documentary evidence of record, they serve a supporting function by clarifYing the nature 
ofthe petitioner's contributions to particular projects. 
The director was correct to note that many ofthe letters are quite general, but not all ofthe letters are 
that way. Many letters specifY how the petitioner's work contributed to the witnesses' own projects 
and has drawn significant attention from the research community. The AAO agrees with counsel 
that the director discounted these letters, and other persuasive evidence, without adequate 
justification. 
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. A significant 
amount ofunrebutted evidence testifies to the petitioner's ongoing impact and influence throughout his 
field. The director, in the notice of decision, did not cite any adverse factors that would outweigh the 
evidence of the petitioner's eligibility. The benefit of retaining this alien's services outweighs the 
national interest that is inherent in the labor certification process. 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 ofthe 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 AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The director's decision of June 14, 2011 is withdrawn. The petition is approved.