sustained EB-2 NIW Case: Biomedical Science

U.S. Department of Homeland Security 
20 Mass. Ave., N.W.. Rm. A3042 
Washington, DC 20529 
U.S. Citizenship 
and Immigration 
FILE: - Office: VERMONT SERVICE CENTER Date: 1 6 2005 
EAC 04 027 53090 
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. § 1 153(b)(2) 
ON BEHALF OF PETITIONER: 
INSTRUCTTONS: 
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. 
'-3 
Robert P. Wiemann, Director 
Administrative Appeals Office 
DISCUSSION: The Director, Vermont Service Center, denied the employment-based immigrant visa petition. 
The matter is now before the Administrative Appeals Office on appeal. The appeal will be sustained and the 
petition will be approved. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality Act (the Act), 
8 U.S.C. 5 1153(b)(2), as a member of the professions holding an advanced degree. The petitioner seeks 
employment as a research associate at Johns Hopkins University (JHU). 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. 
Section 203(b) of the Act states in pertinent part that: 
(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., 1st Sess., 1 1 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990 (IMMACT), published 
at 56 Fed. Reg. 60897,60900 (November 29, 199 l), states: 
The Service [now 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 
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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. 21 5 (Comm. 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. 
Counsel states that the petitioner is performing "critical research in the field of biomedical science 
particularly as it relates to mass spectrometry and proteomics." Counsel's subsequent description of the 
petitioner's work appears to have been lifted verbatim from various witness letters, which shall be discussed 
below. 
The petitioner submits several letters, all from witnesses who have supervised, taught, studied, or collaborated 
with the petitioner. Professor Joe G.N. Garcia, director of the Division of Pulmonary and Critical Care 
Medicine and the Center for Translational Respiratory Medicine at JHU, states: 
In early 2003, our Division of Pulmonary and Critical Care Medicine successfully competed 
for a new research project . . . [that] requires us to recruit an experienced mass spectrometer 
specialist who has the capabilities to seek novel protein biomarkers using proteomic analyses 
of biological fluids from human, canine and murine models of ventilator-associated lung 
injury (VALI). Mechanical ventilation is indispensable in patients with respiratory failure . . . 
[but] can cause damage known as VALI. . . . [Tlhe underlying mechanisms need to be 
explored and mechanical ventilation needs to be modified so that VALI is kept to a minimum 
to improve survival of patients with ARDS [acute respiratory distress syndrome]. . . . Among 
a great number of candidates, [the petitioner] impressed us by her strong interdisciplinary 
educational training, profound knowledge and superior skills in mass spectrometry and 
biology, especially her experience in the field of proteomics. . . . 
Currently [the petitioner] is working on identification of the binding partners of endothelial 
cell myosin light chain kinase (ECMLCK), an essential part of another project funded by 
NHLBI [the National Heart, Lung and Blood Institute]. . . . ECMLCK is a biomarker for 
acute lung injury. However, the underlying mechanism . . . remains unknown. [The 
petitioner's] continuous research will ultimately be used to design effective strategy for 
preventing acute lung injury. . . . 
[The petitioner] is an essential part of our group, further progress is unlikely without her. 
future participation because of the extreme difficulty to find another to replace her critical 
role in her current and future projects. If [the petitioner] has to be replaced with another U.S. 
worker of only minimum qualifications, our progress will be substantially delayed and the 
quality of our work will be greatly diminished because another cannot equal her performance. 
The petitioner earned her doctorate at the University of Virginia under the direction of Professor Donald F. 
Hunt, whom Prof. Garcia calls the "most famous mass spectrometer specialist." Prof. Hunt, in turn, deems 
Prof. Garcia to be "probably one of the premier investigators in this research field." Of the petitioner, Prof. 
Hunt states: 
[The petitioner] is highly gifted and quickly gained mastery of many important bioanalytical 
technologies. These include the combination of the nanoflow HPLC and micro-electrospray 
ionization interfaced to ion trap, triple quadrupole, and Fourier transform mass spectrometers. 
She has now become an expert in the field of protein characterization and is one of a hand 
full of people who can (a) identify proteins present in complex mixtures at 
femtomole/attomole level (b) characterize sites of phosphorylation and other post- 
translational modifications on proteins, (c) conduct comparative proteomic experiments to 
identify proteins differentially expressed in healthy and diseased cells or in cells treated with 
and without a therapeutic agent or agonist, and (d) elucidate protein-protein interactions i11 
the cell. 
Prof. Hunt asserts that the petitioner is "among the top 5% of U.S. scientists working in the fields of 
proteomics and mass spectrometry," and "is on track to become one of the leading scientists in the proteomics 
field." Other professors and collaborators offer comparable praise for the petitioner and the importance of her 
contributions. 
The petitioner submits copies of her published articles, which, counsel claims, "ha[ve] been cited many times 
by other authors." The petitioner submits a list of articles said to cite the petitioner's work, but the source of 
the list is not identified. This unattributed list is, therefore, an unsubstantiated claim. This lack of 
substantiation is particularly critical when claims conflict with one another. The list submitted by the 
petitioner refers to 66 citations, but Prof. Garcia places the number substantially lower, stating that the 
petitioner's "work has been cited by more than 24 publications by other authors." The petitioner documents 
only one citation, by submitting a copy of the citing article. 
The director denied the petition, noting that, without a substantial number of documented citations, "there is 
little evidence that other researchers have relied upon the [petitioner's] findings." The director also concluded 
that the waiver request is based upon the petitioner's training and technical mastery of technology invented by 
others. 
On appeal, the petitioner submits new witness letters. Prof. Garcia states that the petitioner "successfully 
built a functional proteomics lab in about six months after her appointment at Johns Hopkins University," 
without which "a great deal of research projects would have been detrimentally delayed." In this lab, claims 
Prof. Garcia, the petitioner "solved many difficult biological and biochemical problems [that] many 
researchers . . . have been trying to solve for years." Corroborating this claim is Professor Philip Beachy, a 
member of the National Academy of Sciences, who states: 
Although I do not interact directly with [the petitioner] on a daily basis, as she is in Johns 
Hopkins' Division of Pulmonary and Critical Medicine, my lab has benefited greatly from the 
work of [the petitioner's] mass spectrometry proteomics lab. . . . 
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My laboratory's research is focused on Hedgehog proteins as signals involved in embryonic 
tissue patterning and cell differentiation, an area of research pioneered in my laboratory. . . . 
We have struggled for some time to come to grips with the problem of precisely 
characterizing low levels of phosphorylation in a complex protein mixture so that we can 
analyze the biological roles of those phosphorylation events. In this endeavor we turned for 
help to other proteomics labs, but despite much time and effort invested on our part, little 
progress was made. Because of her well-established reputation in mass spectrometry ant1 
proteomics, we contacted [the petitioner] in the summer of 2003 to initiate a collaboration on 
this project. By October, a few months later, [the petitioner] had produced magnificent 
results and identified a significant number of phosphorylation sites from a complex mixture 
of proteins, some of which are present at femtomole levels. This is very impressive. Based 
on her research results we were able to mutate these phosphorylation sites and were able to 
confirm and extend previous studies showing a positive effect for CAMP-dependent protein 
kinase and uncover a positive role for casein kinase la in Hedgehog pathway activation. 
These research findings have greatly advanced our understanding of the mechanisms of 
Hedgehog signaling, and the results were published in Proceedings of the National Academy 
of Science [sic], a pre-eminent journal. Within a few days of publication I received the 
following note from Dr. Robert Lefkowitz, a distinguished scientist and National Academy 
member at Duke University School of Medicine: 
"I really enjoyed your 'Inaugural Article' and Bio in PNAS. What a beautiful and rigorous 
piece of work!" 
Without [the petitioner's] mass spectrometry lab and her critical contribution, we could not 
have succeeded in this project and could not have published our research findings. 
Prof. Beachy states that the petitioner "has become a much-sought resource" among other researchers. 
Corroborating this assertion is Professor John L. Woolford of Carnegie Mellon University, who had 
previously discussed his collaboration with the petitioner. Prof. Woolford states: "I initiated this 
collaboration with [the petitioner] because I had already become very impressed with her well-known 
expertise in mass spectrometry and proteomics." The record shows additional examples of the petitioner's 
collaborations with researchers at other institutions (and even in other countries), demonstrating that the 
petitioner's impact is not limited to the JHU campus. 
The record, as a whole, indicates that the petitioner is not merely an individual who possesses hard-to-find 
skills. Rather, the record indicates that the petitioner's expertise is such that researchers from a broad variety 
of prestigious institutions actively seek her out as a collaborator because of her unparalleled abilities. While 
record does not adequately document the claim of heavy citation, the remaining evidence is persuasive in its 
own right, and lends weight to the general conclusion that the petitioner is responsible for successful research 
outcomes in heavily-cited publications. While the petitioner appears to play a supporting role rather than 
acting as the initiator of research projects, the facts in this pgrticular case indicate that the petitioner serves the 
national interest through that supporting role by producing results that, according to top experts, could not 
have been produced otherwise. 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'. 5 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.