sustained EB-2 NIW Case: Cancer Research

fdenwyfng daEa &kt& to 
prevent slearl:~ canwamnted 
U.S. Department of Homeland Security 
20 Massachusetts Ave., N.W., Rm. 3000 
Washington, D.C. 20529-2090 
m'"SlQ& h.f A rwmona! pjvac;g 
U. S. Citizenship 
and Immigration 
u5 
Office: TEXAS SERVICE CENTER 
 Date: JAN 0 7 2009 
SRC 07 800 09503 
IN RE: 
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 fbrther inquiry must be made to that office. 
7 ~ohn F. Griss MI , Acting Chief 
Administrative Appeals Office 
Page 2 
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 appeal 
will be sustained and the petition will be approved. 
In this decision, the tenn "prior counsel" shall refer to attorney Jerry Zhang, who represented the 
petitioner prior to the denial of the petition. The term "counsel" shall refer to the present attorney of 
record. 
The petitioner seeks classification pursuant to section 203(b)(2) of the Immigration and Nationality 
Act (the Act), 8 U.S.C. 9 1153(b)(2), as a member of the professions holding an advanced degree. 
At the time she filed the petition on March 30, 2007, the petitioner was a doctoral student and 
graduate research assistant at the University of Texas M.D. Anderson Cancer Center, Houston. The 
petitioner received her Ph.D. on August 15, 2007, and subsequently undertook postdoctoral training 
at the same institution. 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 qualifies for classification as a member of the professions holding an advanced 
degree but that the petitioner had not established that an exemption fiom 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: 
(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). 
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 (Comrnr. 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 fkture 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 b'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. 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 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 qualify for a waiver just by demonstrating a degree of expertise 
significantly above that ordinarily encountered in his or her field of expertise. 
In an introductory statement accompanying the initial filing of the petition, prior counsel stated that the 
petitioner "has extensive experience in the nationally critical field of molecular biology and 
hematology, particularly in lymphoma and cancer research." Prior counsel asserted that "leading 
Page 4 
researchers in her field have submitted letters of support testifllng that [the petitioner] is among the elite 
researchers in her s~ecialized field." All of the initiallv submitted letters are from current or former 
I 
faculty members of the M.D. Anderson Cancer Center. Dr. 
 an assistant professor 
there, described the petitioner's research: 
Through her Ph.D. research studies, [the petitioner] has made significant contributions to 
our understanding of the B-lymphocyte stimulator (BLyS) function in non-Hodglun 
lymphoma (NHL)-B cell survival. She found the BLyS and NF-KB, a transcription 
factor critical for cell survival, form a positive feedback loop, which promotes and 
sustains NHL-B cell growth and survival. . . . This work is considered a major 
breakthrough in the field of cancer biology in general and lymphomagenesis in 
particular. . . . [The petitioner's] other work on the BLyS receptor, BR3 or BAFF-R, was 
equally impressive. She demonstrated that BR3 and some NF-KB components form a 
complex to regulate some anti-apoptotic gene expression. This work is an extraordinary 
achievement as it further delineates the current understanding of the molecular 
mechanisms underlying the survival of NHL-B cells. 
, who supervised the petitioner's doctoral training, stated that the petitioner 
"has adopted a creative new approach to address an extremely important problem: B cell stimulatory 
signal in NHL." prof. stated that the petiiion&'s identification of transcriptional 
regulators "is an important first step in determining the molecular pathway of BLyS that [is] important 
in both normal B cells development and disorganized growth occurring in lymphoma. It is anticipated 
that this finding will ultimately greatly enhance our understanding of the oncogenesis of lymphoma." 
concluded that the petitioner "is certainly a top researcher in her field." Other M.D. 
Anderson Cancer Center researchers echoed the assertion (in varying degrees of technical detail) that 
the petitioner has discovered important information regarding lymphoma-afflicted cells. 
The petitioner submitted copies of four articles co-written by her and published in the United States and 
China. The petitioner also established her participation in numerous scientific conferences. The 
petitioner did not, at the time, submit documentary evidence to distinguish her published and presented 
work fiom that of others in ha field. 
On September 28, 2007, the director issued a request for evidence (WE), instructing the petitioner to 
submit further evidence to meet the guidelines set forth in Matter of New York State Dept. of 
Transportation. In response, the petitioner submitted additional letters and documentation which, 
according to prior counsel, establish that the petitioner "has, without a doubt, made important 
accomplishments that have greatly influenced her field as well as the national interests of the U.S." 
The first of the new letters is from Prof. Ford, who elaborated on his previous letter. stated: 
[Tlhe quality and importance of [the petitioner's] work is far beyond the level of 
accomplishment of our average post-doc graduates, in novelty, conceptualization, and 
technical acumen. . . . 
Page 5 
The BLyS protein in immune B cells has been shown by [the petitioner] to control cell 
survival in mature lymphocytes of the B lymphocytes (i.e. B cells), and therefore the key 
cellular component of the humoral or antibody-producing arm of the immune system. 
What [the petitioner] has done in the past two years is to delineate how this normal, 
highly-regulated B cell survival and growth mechanism, is de-regulated and perverted in 
neoplastic B cells which blocks normal apoptotic mechanisms and immortalize the 
transformed B cells. . . . [The petitioner] has also identified the identity and molecular 
conformation of the B/B receptor (BR3) in the tumor cell plasma membrane, as well as 
the NF-kB uniquely dys-regulated signaling pathways that are utilized by lymphoma 
(NHL-B) cells to extend their growth and survival. . . . 
Since the above initial phase of [the petitioner's] laboratory program, she has made two 
additional seminal findings regarding the cellular and molecular biology of the BR3 
receptor in lymphoma cells. These findings are both novel and important, in that they 
define a new paradigm in our understanding of the BLyS-BAFF system in lymphocytes. 
. . . This work is truly remarkable and indicates, in my opinion, that [the petitioner] ranks 
in the top tier of young scientists in this field of cancer research, and that she has 
outstanding potential for a very productive career in cancer research. 
Prior counsel characterized the remaining witnesses as "independent and objective." Dr. - 
associate professor at the Mayo Clinic in Rochester, Minnesota, described the petitioner's 
discovery of the BL~S-NF-KB feedback loop as "a major breakthrough in the field" and concluded that 
the petitioner "has contributed more significantly to lymphoma research than the vast majority of her 
peers and other experienced researchers." 
[The petitioner] delineated a new network of signal transduction molecules, including B 
lymphocyte stimulator (BLyS), NF-kB, and NF-AT, which work together to promote 
the proliferation and survival of lymphoma cells. [The petitioner] found that blocking 
this network results in significant inhibition of lymphoma cell growth and survival. This 
is a major breakthrough in the study of lymphoma cell growth and survival. . . . 
Recently, [the petitioner] has been doing research on the cellular and molecular biology 
of the BR3 receptor in neoplastic human B cells. [The petitioner] has defined a new 
model of the BlyS/BAFF system in the human B-cell lineage. She discovered that the 
BR3 receptor not only signals from the cell surface, but also migrates through the 
cytoplasm and is present in the cell nucleus, where it binds to promoters of several 
known survival genes and activates transcription in a unique fashion. This finding is 
another breakthrough in the basic research of signal transduction pathways in lymphoma 
cells. 
Page 6 
a senior lecturer and researcher at the University of Lausanne, Switzerland, stated 
that the petitioner's "findings will lead to further understanding of how lymphoma occurs and will 
contribute toward establishing effective therapeutic regimens against lymphoma." 
The petitioner documented citations of three of her articles. Prior counsel asserted that one article had 
16 citations (14 independent), the second had seven citations (six of them independent) and the third 
had four citations (none identified as independent). The record appears to document only some of these 
articles. The AAO has been able to identifjr seven published articles and one manuscript independently 
citing one of the petitioner's articles, and five published articles independently citing a second article. 
Other submitted articles are either incomplete, or in Chinese without the translations required by 
8 C.F.R. 5 103.2(b)(3), and as such they are not prima facie evidence that these articles independently 
cite the petitioner's past work. 
The director denied the petition on January 22,2008. The director acknowledged the intrinsic merit and 
national scope of the petitioner's occupation, but found that the petitioner had failed to establish the 
extent of her impact in her field. The director noted that the witnesses who provided letters "do not . . . 
provide any examples of specific resources that they have adopted or expressed interest in adopting" 
fkom the petitioner's work. The director also found the petitioner's documented citation history to be 
minimal. The director concluded that the record shows that the petitioner has "potential to influence the 
field," but not that she has yet realized that potential. 
On appeal, counsel states that the petitioner's "influential research articles have already been 
downloaded from subscription-based scientific journals more than 2200 times and have been cited in at 
least thirty (30+) peer-reviewed scientific articles by researchers around the world." Evidence 
submitted on appeal supports these assertions. Counsel also asserts that the AAO has granted waivers 
to "researcher[s] with significantly fewer citations than [the petitioner]." The AAO adjudicates appeals 
on a case-by-case basis; a low number of citations does not necessarily doom an appeal to dismissal, nor 
is a high number of citations an absolute guarantee of approval. 
The AAO notes that counsel claims that the director failed "to properly acknowledge . . . evidence of 
. . . thousands of downloads" of the petitioner's first-authored article in the journal Blood. This 
assertion, variously worded, appears numerous times in counsel's appellate brief. Counsel specifically 
asserts that "evidence of. . . downloads [was] submitted as part of [the petition], and as part of the 
response to the RFE." The petitioner, however, did not submit "evidence of . . . thousands of 
downloads" prior to the appeal. (Comprehensive exhibit lists submitted with the initial filing and the 
RFE response do not list any such evidence.) The director's failure to anticipate the future submission 
of previously unmentioned evidence cannot be construed as error in any rational sense of that word. 
Counsel fails to provide any sort of comparative evidence that would show that the article's download 
history is unusual. Nevertheless, given the emphasis counsel places on this issue, the AAO will devote 
some space to the subject. 
Counsel specifically and repeatedly claims that the director, both in the RFE and in the subsequent 
decision, ignored evidence that the petitioner's article from Blood was "downloaded" more than 2,200 
Page 7 
times. The petitioner's own evidence submitted on appeal utterly refutes this claim in several ways. 
First, the "Total Accesses" of the article did not cross the 2,200 mark until December 2007. At the end 
of March 2007, when the petitioner filed the petition, the article had been accessed 1,478 times. At the 
time the petitioner responded to the RFE, the total was 1,947. It is simply false to claim that the 
petitioner's article had already been accessed 2,200 times either at the time of filing or at the time the 
petitioner responded to the RFE. 
Even then, "accessing" and "downloading" the article are two different processes. Of the 2,287 
"accesses" as of the end of January 2008, 383 accessed only the article's abstract, not its 111 text. If a 
researcher accessed the abstract and then chose to access the full article, this would count two times 
toward the "total accesses" figure. Similarly, multiple accesses by the same person would also count 
multiple times. In August 2007, the article was accessed 61 times, but from only 28 "Unique IP 
Addresses"; repeat visits &om those 28 addresses account for the total of 61 accesses. There is no 
cumulative total for "Unique IP Addresses," but their monthly totals average 54% of the "Total 
Accesses" for each respective month. This indicates that over 1,200 of the 2,287 "Total Accesses" were 
repeat visits fkom the same IP address. The figure of 2,287 "Total Accesses" is, therefore, significantly 
inflated. Counsel addresses none of this, simply asserting that the "2200+" figure, devoid of context, 
warrants approval of the petition. Counsel's arguments have little weight in this proceeding; the 
petition will stand or fall based on the available evidence, rather than on the sometimes unreliable 
claims of counsel. 
The available evidence, in this instance, includes reliable documentation showing significant citation of 
the petitioner's published work in major journals. Available citation evidence suggests that the 
petitioner's work is growing in influence. The empirical citation evidence mutually reinforces the 
letters fkom independent witnesses, who have credibly and consistently explained why the petitioner's 
findings are of particular significance in the ongoing efforts to fight lymphoma. The record is not 
without flaws, but as a whole, the body of evidence supports the assertion that the petitioner has already 
had a disproportionate influence in her field that is likely to continue to expand. 
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 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.