sustained EB-2 NIW Case: Cancer Research

U.S. Department of IIomeland Security 
20 Mass. Ave., N.W., Rrn. A3042 
Washington, DC 20529 
U. S. Citizenship 
and Immigration 
Services 
FILE: EAC 03 161 52283 Office: VERMONT SERVICE CENTER Date: 
AUG 2 2 2005 .. . 
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. 9 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 further inquiry must be made to that office. 
py?Robert P. Wiemann, Director 
Administrative Appeals Office 
EAC 03 161 52283 
Page 2 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Vermont Service 
Center, and 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. § 1153(b)(2), as an alien of exceptional ability or a member of the professions holding an 
advanced degree. The petitioner seeks employment as a research scientist. The petitioner asserts that an 
exemption fkom 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, counsel asserts that the director erred in not issuing a request for additional evidence. Even if we 
were to concur with that assertion, the most appropriate remedy is to consider evidence that might have been 
submitted in response to such a request on appeal. On appeal, the petitioner submits new reference letters, 
additional articles by the petitioner and his expanded citation record. This evidence will be considered below. 
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 requirement 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 petitioner holds a Ph.D. from Peking Union Medical College. The petitioner's occupation falls with the 
pertinent regulatory definition of a profession. The petitioner thus qualifies as a member of the professions 
holding an advanced degree. The remaining issue 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 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 (1989). 
EAC 03 161 52283 
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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 believes it appropriate to leave the application of thls test as flexible as possible, 
although clearly an alien seelung to meet the [national interest] standard must make a showing 
significantly above that necessary to prove the "prospective national benefit" [required of aliens 
seelung 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 Dep't. of Transp., 22 I&N Dec. 215 (Cornm. 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 c1earl.y 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 concur with the director that the petitioner works in an area of intrinsic merit, cancer research. The 
director then concluded, without explanation, that the petitioner had not demonstrated that the "inlpact" of 
the petitioner's "proposed activities" would be national in scope. Counsel challenges this determination on 
appeal. The proper consider is whether the proposed benefits of the petitioner's work would be na.tiona1 in 
scope. In this matter, the proposed benefits of the petitioner's work are improved understanding of cancer 
and improved therapeutic technologies. We find that these proposed benefits would be national in scope. 
It remains, then, to determine whether the petitioner will benefit the national interest to a greater extent than 
an available U.S. worker with the same minimum qualifications. Eligibility for the waiver must rest wlth the 
alien's own qualifications rather than with the position sought. In other words, we generally do not accept 
the argument that a given project is so important that any alien qualified to work on this project must also 
qualify for a national interest waiver. At issue is whether this petitioner's contributions in the field are of 
such unusual significance that the petitioner merits the special benefit of a national interest waiver, over and 
above the visa classification he seeks. By seeking an extra benefit, the petitioner assumes an extra burden of 
proof. A petitioner must demonstrate a past history of achievement with some degree of influence on the 
field as a whole. Id. at 2 19, n. 6. 
The director determined that the petitioner had not demonstrated his role in various projects or that his work was 
considered to be "breakthrough." The director discounted the petitioner's reference letters as being o111y from 
his academic mentors and discounted the petitioner's citation history for unspecified reasons. 
EAC 03 161 52283 
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On appeal, counsel asserts that the director should not have required evidence that the petitioner's work is 
considered "breakthrough," that the director's brief quotes from the reference letters were partial and 
incomplete. Counsel notes the petitioner's citation record. The petitioner submits new reference letters, 
additional articles and an expanded citation history. 
As stated above, the petitioner obtained his Ph.D. in 1998 from Peking Union Medical College. During his 
studies there, the petitioner spent one year as a World Laboratory Fellow at the Laboratory of Molecular 
Biology, National Institute for Cancer Research in Genoa, Italy. The petitioner then accepted a postdoctoral 
position with Columbia University. In 1999, the petitioner joined the Mount Sinai School of Medicine where he 
remains. 
~r.- the petitioner's supervisor in Geooa, asserts that the petitioner carried out most of the work 
there, which focused on the responsiveness to retinoic acids in distinct cancer cells, "autonomously." Dr. 
explains that the petitioner established "an efficient RT-PCR method that allowed him to quickly 
examine the expression status of various members of the retinoids receptor family in different cancer cell types." 
The etitioner used this method to examine responsiveness in esophageal, stomach and lung cancer cells. Dr. 
I) Director of the World Laboratory, explains that while the RT-PCR method for the detection of 
the expression pattern of retinoic acids receptors was developed in the laboratory prior to the petitioner's arrival, 
the petitioner's improved model "was much more efficient and simple." 
~rhrther explains the petitioner also determined that a synthetic retinol acid demonstrated even more 
potent anticancer activity. The petitioner identified DPH2L as a tumor suppressor target, suggesting DPH2L 
has a 'potential" clinical application "as a biomarker in the cancer prognosis and treatment." ~rm 
concludes that this work "helped us in understanding the molecular mechanism of the anticancer effects of 
retinoic acids'' and "may also provide a potential biomarker for future clinic applications." Dr. - 
Dean of the Institute of Cell Biology at Beijing Normal University, provides similar information. 
The director quotes the above references' statements regarding the potential significance of the petitioner's 
Ph.D thesis work and ~ratement that he is not familiar with the petitioner's current work. In doing 
so, the director appears to imply that the witness letters as a whole merely attest to the potential significance of 
the petitioner's thesis work and do not discuss the petitioner's postdoctoral work. While attestations of' potential 
significance are less persuasive than examples of how the petitioner's work has already impacted the field, the 
record must be evaluated as a whole. We concur with counsel that the quotes referenced by the director are a 
poor representation of the witness letters as a whole. The director failed to fully consider the remaining letters, 
which discuss at length the petitioner's postdoctoral work, and the objective evidence supporting all the letters, 
the petitioner's citation history. 
At the Mount Sinai School of Medicine, the etitioner has been focusing on the Wnt signaling pathway in the 
Dr.dexplains that the petitioner "discovered, for the ficit time, a 
novel for this receptor, which has no precedent among other receptors." In 
addition, the petitioner developed "a novel retroviral expression vector system," a tool for mediating "gene 
transfer to cells or within the whole animal body when properly modified." Previously, the vectors utilized were 
mostly "of mouse origin." The petitioner "used molecular techniques and made a series of human-mouse 
chimeric retroviral vectors that combined the advantages of both human and mouse retroviruses." The 
petitioner's vector "has significantly improved efficiency for gene delivery and much higher expression intensity 
EAC 03 161 52283 
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of the target genes in human cells. This system has been promptly used by colleagues withn our lab and other 
labs and is potentially a powerful tool for gene therapy." 
In a new letter submitted on appeal, Dr.confirms that the petitioner was "critically involved" in 
"several crucial findings" at Mount Sinai and his "contribution to these studies are unique and of key 
importance." While -s one of the petitioner's colleagues and his letter cannot, by itself; establish 
the petitioner's influence in the field beyond his circle of colleagues, the petitioner's colleagues are In the best 
position to explain the nature of the petitioner's role for the various projects on which he worked. 
I 
Most significantly, Dr. a professor at Tel Aviv University and one of the petitioner's coauthors, 
discusses the petitioner's work with Wnt. 
[The petitioner] has succeeded in constructing a wide range of cDNA expression vectors with 
different tag sequences and made use of site-directed mutagenesis to analyse [sic] the 
structure/function relationship of frizzled-1. He found that a conserved motif, localized in the 
carboxyl terminal of hzzled, interacts with several intracellular proteins in a yeast-two-hybrid 
screening, and also regulates the receptor protein level and signaling intensity. In addition, he 
demonstrated the significance of an extracellular domain truncated LRP5/6, a Wnt coreceptor, 
in revealing the mechanism of receptor activation. This truncated form of LRP516 as 
constitutively active to mediate Wnt signaling and may correspond to the active state of the 
wild type receptor. By using a series of mutagenesis and protein interaction approaches, he 
uncovered an unusual mechanism fore the activation of this wild type coreceptor through 
regulation of the receptor oligomerization status. 
Dr. concludes that this work has high significance "to the study of other trans-membrane signal 
transduction and in elucidating the roles of misregulations in the Wnt pathway in human diseases. 
~r.n assistant professor at the University of Pennsylvania, explains that disruption of the Wnt is 
related to colon cancer and asserts that the petitioner's work has significantly increased knowledge concerning 
this pathway. While the director implied that all of the references were colleagues of the petitioner during his 
academic pursuits, DT. knows of the petitioner through his publication record and interactions at scientific 
conferences. 
The petitioner submits additional independent reference letters on appeal. Dr 
Laboratory of Tumor Immunology at the National Cancer Institute, asserts that hChief t e petitioner's work with the the 
Wnt pathway "provide the basis for exciting and significant progress relevant to fundamental biology with direct 
application to medicine." 
Dr. Director of the Fels Institute for Cancer Research and Molecular Biology, asserts that 
the petitioner's elucidation of mechanisms of Wnt activation of its membrane receptor LRP5/6 and the action of 
inhibitory proteins is an "essential contribution to this field." ~r.further notes that in addition to 
anticancer implications, the Wnt pathway is also related to the accumulation of bone mass, making the - 
petitioner's work relevant to osteoporosis research. 
Dr. a division chief at Columbia University, asserts that the petitioner's work on Wnt pathways 
"greatly contributed to our understanding of the basic cellular signaling regulation in both human organism 
EAC 03 161 52283 
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development and physiology." Finally, Dr. Director of the Netherlands Institute for 
Developmental Biology, asserts that the petitioner has "answered the fundamental questions at the molecular -- 
level about how a group of proteins called Dickkopf inhibit Wnt medicated signaling, and through what 
mechanism Wnt activates its receptors." 
Even prior to appeal, several of the petitioner's references focus on the petitioner's work with the Wnt pathway, 
work not even acknowledged by the director. Supporting the claims in the reference letters of the significance 
of this work is the petitioner's citation history. The petitioner's postdoctoral articles in the Enzbo Journal and 
Nature Cell Biology had been cited 14 and 29 times respectively as of the date of filing. Even the petitioner's 
doctoral work, published in Progress in Natural Science and the International Journal of Cancer had been cited 
13 and 15 times respectively. The vast majority of the citations mentioned in this paragraph are by independent 
researchers. While the petitioner's citation record after the date of filing is not directly relevant to his eligibility 
as of that date, we note that on appeal, the petitioner submits evidence that the above articles cont~nue to be 
cited and that his new articles are also consistently cited. Thus, the petitioner has continued his record of 
publishing influential results. 
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 above testimony, and further testimony in the record, establishes that the biomedical research 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. 1361. 
The petitioner has sustained that burden. Accordingly, the decision of the director approving the petition will 
be affirmed. 
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 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.