sustained EB-2 NIW Case: Biomedical Research

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PUBLIC COPY 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Office: TEXAS SERVICE CENTER 
 Date: MAR 1 6 2009 
SRC 07 800 21871 
IN RE: 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 fhther inquiry must be made to that office. 
V 
f John F. Grissom, Acting Chief 
Administrative Appeals Office 
Page 2 
DISCUSSION: 
 The Director, Texas Service Center, denied the employment-based immigrant visa 
petition. The Administrative Appeals Office (AAO) withdrew the director's decision and remanded the 
matter for further consideration. The director subsequently approved the petition and certified the 
decision to the AAO for review. The AAO will affirm the certified approval of the petition. 
The petitioner seeks classification pursuant to section 2030>)(2) of the Immigration and Nationality Act 
(the Act), 8 U.S.C. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a research associate at the Children's Nutrition Research Center at 
Baylor College of Medicine (BCM), Houston, Texas. 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 failed to submit supporting documentation with seven 
days of electronically filing the petition, as required by the instructions to the petition, and denied the 
petition for that reason on December 20,2007. 
The AAO remanded the matter on September 26,2008, based on evidence showing that the petitioner 
had in fact submitted the required evidence within the required period. The director subsequently 
adjudicated the petition on its merits. 
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 Attomey General may, when the Attomey 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 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 
fiom, 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. 8 204.5(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 regulation at 8 C.F.R. 5 204.5(k)(4)(ii) requires that a petitioner seeking to apply for the 
exemption must submit Form ETA-750B, Statement of Qualifications of Alien, in duplicate. The 
petitioner's initial submission lacked this evidence, but the petitioner submitted it after the director 
issued a request for evidence on October 30,2008. 
Page 4 
Regarding the merits of the petition, the AAO, in its remand order, noted the citations that the 
petitioner's published work has garnered. The AAO also quoted from some of the witness letters 
that accompanied the petitioner's first substantive submission. The AAO's discussion of these 
letters, found in the September 26, 2008 remand order, is incorporated here by reference. The AAO 
stated: 
The petitioner has shown . . . that his work appears to have attracted significant notice 
and influenced others in the field. If further adjudication (including a request for such 
evidence as the director may deem necessary) supports rather than refutes this finding 
. . . , then approval of the petition would be in order at that time. The record as it now 
stands, however, does not yet warrant approval of the petition. Therefore, this matter 
will be remanded. As always in these proceedings, the burden of proof rests solely with 
the petitioner. Section 291 of the Act, 8 U.S.C. 5 1361. 
In response to the director's October 30, 2008 request for evidence, the petitioner documented 56 
citations of his most heavily cited article, indicating substantial interest and impact. The etitioner also 
submitted additional witness letters, from the BCM faculty and from elsewhere. h - credited the petitioner with "si ficant contributions to the study of the function of a 
new longevity gene family: the SIRTs." Prof. &continued: 
Caloric restriction . . . is the most effective and well-documented way to extend life span 
and prevent age-related disease. . . . The molecular mechanism of caloric restriction is a 
mystery. Based on the finding in yeast that caloric restriction extends life span through 
the Sir2 gene, [the petitioner] tested whether mammalian Sir2 homologues are also 
mediators of caloric restriction. . . . [The petitioner] is the first researcher to discover that 
SIRT2 and SIRT3 are induced by caloric restriction in mice. . . . This work was 
published in the Journal of Biological Chemistry (JBC) in 2005 and has been cited 54 
times in academic journals. 
SIRT2 deacetylates FOX03a, which is a key transcription factor that regulates again, 
metabolism, and anti-cancer responses. . . . 
[The petitioner's] work provides the mechanism of regulation of FOX03a hnction by 
SIRTl and SIRT2, and provides an answer for the contradictory findings of different 
researchers. More importantly, his results bring up the concept that activating SIRTl 
and SRT2 may have different consequences in healthy people and cancer patients. 
FOX0 transcription factors are key tumor suppressors in many cancers. . . . As the SIRT 
activator resverastrol [sic; the correct spelling is resveratrol] is enthusiastically 
advertised as an anti-aging supplement, [the petitioner's] research reminds us to be 
cautious with this kind of drug because of the possible negative effects in some 
pathological conditions, especially cancer. 
of Hannover Medical School in Germany stated that the petitioner's "important 
contributions to the research of SIRTs and his comprehensive understanding of SIRTs' function have 
already raised him to the top of SIRTs' research." 
In a notice dated December 11, 2008, the director found that the petitioner had established that "the 
benefit of the self-petitioner's work is of national importance." The director certified the approval of 
the petition to the AAO. The AAO concurs with the director's finding. The petitioner has submitted 
witness letters and strong objective evidence to establish that his work has had, and continues to have, 
especially significant impact on his field. 
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. 8 1361. The petitioner has sustained that burden. Accordingly, the AAO will affirm the 
director's approval of the petition. 
ORDER: 
 The director's decision of December 11,2008 is affirmed. The petition is approved.