sustained EB-2 NIW Case: Cancer Research

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U.S. Department of Homeland Security
20 Mass. Ave., N.W., Rm. 3000
Washington, DC 20529
u.S.Citizenship
and Immigration
Services
LIN 03 19851341
Date: JAN 31 2007
INRE: 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 further inquiry must be made to that office.
~~~
YRobert P. Wiemann, Chief
Administrative Appeals Office
www.uscis.gov
.. ~ -
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa
petition. The director reopened the matter on motion to amend the initial decision and subsequently
denied the petition a second time. The matter is now before the Administrative Appeals Office on
certification. The director's decision will be withdrawn and the petition will be approved.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. On the petition, the petitioner indicated that the proposed employment
was as a research associate. We acknowledge that the petitioner has subsequently been promoted. The
petitioner asserts that an exemption from the requirement of a job offer, and thus of an alien
employment certification, is in the national interest of the United States. The director found that the
petitioner qualifies for the classification sought 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 referenced certain factual mistakes, such as the petitioner's occupation and
pronouns referencing the petitioner. Counsel concluded that these mistakes demonstrated that the
director had not thoroughly examined the record of proceeding. As stated above, the director reopened
the matter and amended the petitioner's occupation and the relevant pronouns. On certification,
counsel asserts that the director erred in allowing the same adjudicator to review the multiple petitions
filed in behalf of the petitioner and in allowing this same adjudicator to review the petition after the
appeal was filed. Counsel requests a de novo review by this office and asserts that the initial concerns
raised on appeal have not been resolved by the amended decision.
In addition, counsel requests oral argument. The regulations provide that the requesting party must
explain in writing why oral argument is necessary. Furthermore, Citizenship and Immigration
Services (CIS) has the sole authority to grant or deny a request for oral argument and will grant
argument only in cases involving unique factors or issues of law that cannot be adequately addressed
in writing. See 8 C.F.R. § l03.3(b). In this instance, counsel identified no unique issues of law to be
resolved. In this matter, the written record of proceeding fully represents the facts and issues in this
matter. Consequently, the request for oral argument is denied.
At the outset, we note that counsel alleges incompetence at the Service Center level, requesting that the
adjudicator responsible for the decision be fired. Specific allegations, such as asserting that the
adjudicator failed to review the record in this matter appear unfounded. The use of boilerplate
language, per se, is not evidence that the record was not reviewed. Many petitions in the same
classification involve similar issues and it is unreasonable, to say nothing of inefficient, to expect the
director to craft entirely original responses to similar evidence and assertions. Moreover, the gender of
the petitioner is not material to the merits of the petition. We note that on page 4 of the original
decision, the director correctly identified the petitioner's school and individuals supplying letters in this
Page 3
matter. Thus, the original decision does not appear to be a case where the entire decision is based on
the facts of a different case.
Nevertheless, while we strongly disagree with counsel that the decision represents gross incompetence
and do not agree that all of the evidence carries the weight ascribed by counsel, we are persuaded, as
will be discussed in more detail below, that the director failed to give sufficient weight to the numerous
letters from independent experts in the field provided initially and in response to the request for
additional evidence.
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 Master's degree in Biochemical Pharmaceuticals from Shandong Medical
University in July 1996. The petitioner's occupation falls within 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 an alien employrnent 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, 101st Cong., 1st Sess., 11 (1989).
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 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 Dep't. of Transp., 22 I&N Dec. 215 (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.
We concur with the director that the petitioner works in an area of intrinsic merit, cancer research,
and that the proposed benefits of her work, improved and less toxic treatment for leukemia and other
cancers, 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 with 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.
Matter ofNew York State Dep 't of Transp. , 22 I&N Dec. at 218. Moreover, it cannot suffice to state
that the alien possesses useful skills, or a "unique background." Special or unusual knowledge or
training does not inherently meet the national interest threshold. The issue of whether similarly­
trained workers are available in the United States is an issue under the jurisdiction of the Department
of Labor. Id. at 221.
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 she 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 219, n. 6. In evaluating the petitioner's achievements, we note that original
innovation, such as demonstrated by a patent, is insufficient by itself. Whether the specific
innovation serves the national interest must be decided on a case-by-case basis. Id. at 221, n. 7.
When the petition was filed in June 2003, the date by which the petitioner must establish her eligibility,
the petitioner was completing her Ph.D. at the Medical College of Ohio. While the petitioner is relying
rim "Ion the significance of her work while a Ph.D. student in the laboratory of
the alien's past record need not be limited to prior work experience. Specifically, this benefit
does not require a quantified threshold of experience or education. Id. at 219, n.6.
lasserts that the petitioner "uncovered the mechanism by which folate is up-regulated in
leukernia cells," providing a less toxic strategy for treating leukemia. Specifically, this work provides
guidance for targeting leukemia cells with chemotherapy. These results were published in Blood. In
response to the director's request for additional evidence, the petitioner submitted evidence that
independent research teams had cited this work. While the petitioner must demonstrate the significance
of this work as of the date of filing, we note that the initial reference letters, including six letters from
independent experts in the field, all attest to being previously aware of this work and its significance.
further addresses the petitioner's work with ChIP technology, asserting that the petitioner
has achieved what others could not using this technology. ChIP technology is significant because it
"provides a bridge connecting in vitro and in vivo methodologies that can be used to study the gene
regulation in vivo." The petitioner utilized this technology to "answ~questions about the
mechanism of folate receptor regulation." An independent reference, _of Harvard Medical
School, explains that this work provides "guidance in up-regulating folate receptors, which is crucial to
efficiently apply targeting treatment to cancer." a research scientist at Harvard
Medical School, asserts that the beneficiary's models developed using ChIP technology have helped
other research scientists, including
Finally_ discusses the petitioner's development of yeast models expressing human folate
recepto~ not only asserts that these models are being used by "many investigators," but
confirms using them himself
The remaining reference letters, including the six independent letters submitted initially and the 10
independent letters submitted in response to the director's request for additional evidence, all provide
similar information and need not be repeated here. While the submission of independent letters does
not create a presumption of eligibility, the content of all of the letters is extremely persuasive in this
classification.
Additional evidence would have significantly bolstered the petitioner's case. For example
and some of the independent references discuss a patent application that is not in the record. The
record also lacks letters from any entity expressing an interest in licensing this innovation. As stated
above, the mere act of submitting a patent application does not warrant a national interest waiver.
Matter ofNew York State Dep't of Transp., 22 I&N Dec. at 221, n.7. While several references seem to
imply that the petitioner's work already has clinical applications, the record lacks letters from hospitals
or oncologists applying or investigating her results. Nevertheless, as stated above, some of the
petitioner's independent references do appear to have been influenced by the petitioner to at least some
degree. These claims are supported by a moderate citation record.
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 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 alien employment certification process. Therefore, on the basis of the evidence
submitted, the petitioner has established that a waiver of the requirement of an approved alien
employment 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
denying the petition will be withdrawn and the petition will be approved.
ORDER: The petition is approved.