sustained EB-2 NIW Case: Biomedical Research

U.S. Department of EIomeland Security 
U S Cltlzenshrp and Imm~grat~on Servlces 
identifpinp dsil deizted to 
 Ofice of Adrnzn~stratzve Appeals MS 2090 
Wash~ngton, DC 20529-2090 
prevent c:i-zi ky urwarrai~ted 
invasion of pcrsora! privac] 
 U. S. Citizenship 
and Immigration 
PUBLIC COPY Services 
Office: NEBRASKA SERVICE CENTER Date: 
LIN 07 106 53321 
 JUN 0 5 2009 
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. 
//;A F. Grissom 
// " 
 Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Nebraska 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner seeks employment as a postdoctoral researcher at the University of Texas Southwestern 
Medical Center (UTSMC). 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, witness letters, and other 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, 101 st Cong., 1 st Sess., 1 1 (1 989). 
Page 3 
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 (USCIS)] 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 (Cornrnr. 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 offedlabor certification requirement; 
they are not exempt by virtue of their exceptional ability. Similarly, aliens who are professionals 
with an advanced degree are also not exempt from the job offedlabor certification requirement by 
virtue of their higher education. 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 or education significantly above that 
ordinarily encountered in his or her field of expertise. 
The petitioner filed the petition on February 28, 2007. In a statement accompanyng her initial 
submission, the petitioner stated: 
I have been conducting advanced biomedical research as a Postdoctoral Researcher in 
the Department of Molecular Genetics at the University of Texas Southwestern Medical 
Center since September 2003. . . . 
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I am currently exploring the fundamental mechanisms of atherosclerosis, the primary 
cause of death in the United States. . . . 
Our pioneering research work in atherosclerosis has captured the attention of other 
researchers worldwide. I am also involved in a broad collaboration with the Department 
of Pathology and Laboratory Medicine at the University of Cincinnati, the Department 
of Biochemistry and Molecular Biology in the University of Maryland School of 
Medicine, the Department of Internal Medicine at the University of Michigan, the 
Department of Biochemistry at the University of Wisconsin-Madison and the 
Department of Cardiology at the University of Cologne in Germany in various projects. 
The petitioner submitted several witness letters with the petition. 
 of Peking 
Union Medical College, where the petitioner earned her doctoral degree, stated that the petitioner's 
work with rats at that college "sheds new light on the molecular mechanism of atherosclerosis." 
UTSMC profess0 stated: 
While cholesterol is the main driving force that initiates the degenerative changes in the 
artery walls we general[ly] refer to as arteriosclerosis, we still know very little about the 
signals to which the cells in the artery wall respond as the disease begins or while it 
progresses. Clearly, understanding how these beacons instruct the artery wall to harden, 
eventually occluding blood flow, would allow us to develop entirely new classes of 
drugs that would complement those designed to lower cholesterol levels. . . . 
Moreover, as we have begun to realize only recently, cancer cells often employ the same 
molecular mechanisms that drive arteriosclerosis to promote their own uncontrolled 
growth. Thus, it is possible that in the coming years we will uncover not only novel 
ways to prevent heart disease, but also novel and hitherto unsuspected new strategies in 
the fight against cancer. 
As it turns out, [the petitioner's] former training in China combines the skills necessary 
for investigating these common mechanisms with our expertise in studying complex 
genetic mechanisms in genetically mutant mice in an ideal manner. About 3 years ago, I 
recruited her to my laboratory to begin an ambitious project that involves the generation 
of a series of genetically targeted mouse strains of a hitherto unprecedented complexity. 
In these animals, which took over two years to produce, we can now switch on and off 
those proliferative signals in the artery wall that control atherosclerosis at will. This in 
turn will provide us with unprecedented insight into cholesterol-independent signals that 
might be pharmacologically exploited. 
It . . . is essential . . . to retain [the petitioner] as the lead scientist of the project. Her 
skills and expertise are essential for completing this work successfully. If she had to 
leave the country, enormous investment costs would be lost. 
. . . [The petitioner] has . . . made two other important contributions to science. First, she 
showed that the signaling pathways that are critically important for atherosclerosis 
involve the activation of a molecule called PI3 Kinase. . . . In another study. . . we were 
able to show that fat accretion, and in fact fat loss, are both also regulated and controlled 
by the same molecules that are involved in atherosclerosis. 
We know [the petitioner] since she has worked for the past 3 years as a postdoctoral 
fellow in the department that we head at the University of Texas Southwestern Medical 
Center. . . . In a word, her work has been excellent. 
In 1985 we shared the Nobel Prize in Medicine for our discovery of the fundamental 
mechanism by which the body controls the level of cholesterol in blood, and the 
pathologic mechanism by which certain genetic defects lead to a buildup of cholesterol 
in blood and produce premature heart attacks. [The petitioner] is contributing the next 
chapter to this important work. 
[The petitioner] is studying the fundamental mechanism by which cholesterol produces 
the arterial plaques that block blood vessels, causing heart attacks and strokes, and 
triggering more than one-third of all deaths in the United States. [The petitioner] has 
made fundamental advances by showing that this disease is accelerated by proteins on 
the surfaces of cells in the artery walls. These proteins, called lipoprotein receptors, 
regulate the growth of the cells in the artery wall. When these receptors are 
nonfunctional, the cells of the wall overgrow, and they protrude into the channel of the 
blood vessel, blocking the channel and causing heart attacks and strokes. 
[The petitioner] is one of the most talented postdoctoral fellows to have worked in our 
department over the past 30 years. She is an excellent experimentalist, and often 
achieves results where others have failed. She is a tremendous force in our battle against 
heart disease. 
I believe [the petitioner] is an extraordinarily talented researcher in the field of 
cardiovascular diseases. . . . She has made novel discoveries that give me some insights 
on my own research. . . . [Her] research results, once [they have] appeared in 
publications, will open a new paradigm in the cardiovascular research area, potentially 
offering novel strategies for the prevention and treatment of cardiovascular diseases. 
Page 6 
of the University of Wisconsin-Madison (another of the universities involved in 
the "broad collaboration" mentioned by the petitioner) stated that the petitioner "has made a seminal 
discovery that connects a receptor previously associated with cholesterol metabolism, with the 
proliferation of cells in the arterial wall. Ths process is central to the development of coronary heart 
disease." 
- of the University of Michigan (another participant in the 'broad 
collaboration") stated that the petitioner "has made several important discoveries in her field, including 
the further characterization of the low-density lipoprotein (LDL) receptor gene family which protects 
humans against atherosclerotic disease." 
Editor-in-Chief of Experimental Aging Research, stated: "It is clear that [the 
petitioner's] accomplishments and achievements in the field of atherosclerosis represent a professional 
legacy which has and will continue to contribute to the public health interest of the United States." 
On August 6, 2008, the director issued a request for evidence (WE), instructing the petitioner to 
provide documentary evidence showing that other researchers have cited the petitioner's published 
work. Much of the petitioner's response relates to developments that took place after the petition's 
February 2007 filing date, such as a paper published in the Journal of Clinical Investigation (JCI) in 
November 2007, a postdoctoral fellowship awarded in May 2008, and a promotion she received in 
July 2008. The beneficiary of an immigrant visa petition must be eligible at the time of filing; a 
petition cannot be approved at a future date after the beneficiary becomes eligible under a new set of 
facts. See Matter of Katigbak, 14 I&N Dec. 45, 49 (Regl. Commr. 1971). Therefore, we cannot 
consider developments after the filing date. 
Although the director's primary request had been for evidence of citation of the petitioner's work, only 
three of the petitioner's eleven exhibits in response to the WE directly related to citation of her work. 
Two of these exhibits are database printouts, showing minimal citation of the petitioner's published 
work. The petitioner also submitted a copy of one article, published in July 2008, citing the petitioner's 
JCI article. The citing article indicated that the JCI article provided "some insight into [LRPl 's] 
hnction in [adipocyte] tissue. . . . Although many questions remain, the study reveals a prominent role 
of adipocyte LRP1 in modulating energy metabolism and sensitivity to diet-induced obesity." 
The director denied the petition on September 29, 2008. The director found that the petitioner's work 
has substantial intrinsic merit and national scope, but that the petitioner had not distinguished herself 
fiom others in the field. The director found the petitioner's citation rate to be minimal, and also noted 
that the initial witness letters were fiom the petitioner's mentors and 
 collaborators. 
On appeal, counsel asserts that the petitioner's "atherosclerosis related work has been quite influential 
to her field as a whole. As shown . . . with the citations of her work, the influence has been on an 
international level." The petitioner documents fixther citations of her work on appeal. The moderate 
number of citations reflects influence, but the petitioner must show that thls influence is at a level that 
distinguishes her from other qualified researchers in her field. 
In an effort to establish this influence, the petitioner submits five new witness letters. In a new letter, 
states: 
My decision to recruit [the petitioner] to Dallas was primarily influenced by two 
factors in her CV. First, [the petitioner's] expertise in PDGF signaling, the most 
important signaling pathway in the vasculature that is activated on the road to 
atherosclerosis, i.e. coronary artery disease. The second item on her CV that caught 
my eye, and made her one of very few possible candidates in the world with that 
particular combination of skills, is her previous experience in Alzheimer's disease 
research, specifically her prior work with the amyloid j3 protein. . . . [The petitioner's] 
expertise in both of these areas was instrumental for accelerating our research 
progress in both fields. 
The first and only time that I met [the petitioner] was in front of her excellent poster at 
the American Heart Association (AHA) Scientific Sessions in 2006. Prior to meeting 
her, her research work had already attracted my attention. . . . [The petitioner] uncovered 
that aging, as an important part in the development of atherosclerosis, plays its role by 
upregulation of PDGF expression. Her study markedly illuminates the molecular 
mechanisms of aging-associated increase of atherogenesis and leads to a better 
understanding of the sophisticated mechanisms of atherosclerosis. 
. . . [The petitioner's] study points to a potential targeting site for developing 
pharmaceutical drugs in preventing and treating atherosclerosis. 
work, states: 
One of my research groups sought to investigate the influence of ageing on signal 
transduction, and the effects of two commonly used lipid-lowering drugs, gemfibrozil 
(GFB) and atorvastatin (ATV), on these signal transduction pathways in rats. When we 
were searching publications in PubMed for up-to-date information about transcription 
factors and ageing, [the petitioner's] 2003 paper in Experimental Gerontology caught 
our attention. In this paper, [the petitioner] has nicely shown that a transcription factor, 
nuclear factor-kappa B (NFKB), is activated by hypercholesterolemia, a key risk factor 
atherosclerosis, in the endothelial cells in vivo. In addition, NFKB accelerates the 
formation of atherosclerotic lesions. . . . She also detected that NFKB activation is more 
remarkable in the old rats in response to a high-cholesterol diet, suggesting that NFKB is 
a critical transcription factor in ageing as well as in hypercholesterolemia-induced 
Page 8 
atherosclerosis. . . . [The petitioner's] discovery serves as one of the important bases for 
our research. . . . 
In my expert point of view, [the petitioner's] research of ageing and atherosclerosis is 
significant and inspiring. 
Principal Scientist at Wyeth Research, Cambridge, Massachusetts, states that the 
elaborated recent progress in study of the molecular mechanisms of' Alzheimer's 
disease. 
I have never worked with [the petitioner], although I have had the pleasure of meeting 
her at the American Heart Association 2006 Scientific Sessions in Chicago. . . . I was 
amazed at her idea of using a genetic mouse model to study protein interactions in the 
development of atherosclerosis. . . . [The petitioner] has shown that these mice are 
almost completely protected from atherosclerotic lesion development. . . . Her 
findings are important for improving our understanding of how atherosclerotic lesions 
[form] and what determines the susceptibility of an individual. 
When the director issued the WE, the director only asked for evidence of citations. While citations are 
one way to gauge a researcher's impact, they are not the only way, nor are they always necessarily the 
best way. If an alien has produced a large number of poorly-cited publications, with one single heavily- 
cited exception, that one exception may not be the best gauge of the petitioner's likely future impact. 
Independent witness letters are another means to establish an alien's impact on his or her field. This is 
not to say, of course, that every alien who manages to obtain independent witness letters is entitled to a 
national interest waiver. We must judge each letter by the caliber of the source, the specificity and 
clarity of the claims, and credibility and consistency with the other evidence. For example, if an alien's 
work has accumulated very few citations, then the claim that the alien's work is heavily cited is not 
credible, no matter how many witnesses make such a claim. Letters from professors and department 
heads can carry greater weight than letters from postdoctoral researchers and low-level staff scientists. 
A witness's failure to disclose prior connections with an alien, in order to appear more independent, will 
reflect poorly on that witness's credibility. 
We can also envision other means, beyond letters and citations, to establish an alien researcher's 
impact. For instance, if an alien holds a patent on an invention or process, the alien could produce 
documentary evidence that this invention or process is now in widespread use. Also, the alien's work 
could be the subject of independent media coverage (as opposed to promotional press releases). In each 
instance, the burden is on the petitioner to produce credible evidence in support of the petition, and the 
director must give full and fair consideration to the evidence presented. 
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The petitioner has submitted letters from independent witnesses, explaining clearly and credibly the 
nature of the petitioner's contributions in her field of endeavor. Also, as counsel notes, the credible 
assertions of two Nobel laureates in the petitioner's field carry significant weight. 
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 ths 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. fj 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.