sustained EB-2 NIW Case: Cancer Research

identifying data deleted to 
preVent cle%ily unwarranted 
.immian ofpssonal privacy 
PU~L~C COPY 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Of$ce ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
Services 
FILE: Office: NEBRASKA SERVICE CENTER Date: OC' 1 9 2009 
SRC 07 800 25764 
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. fj 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. 
Wrry Rhew 
Chief, Administrative Appeals Office 
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. 9 1153(b)(2), as a member of the professions holding an advanced degree. The 
petitioner is a postdoctoral research fellow at the University of Texas Health Science Center (UTHSC), 
Houston. 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 and copies of materials already in the record. 
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 
qualifj 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. 2 15 (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. 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 offerllabor 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. 
The petitioner filed the petition on July 29, 2007, shortly after he completed his doctorate at UTHSC. 
The petitioner submitted several letters discussing his cancer research, all but one of them from current 
or former UTHSC faculty members. the petitioner's supervisor at UTHSC, 
stated: 
[The petitioner worked] on a project involving the identification of drug-resistant p- 
tubulin mutations. He exploited a random mutagenesis approach, an innovative tool, in 
order to isolate Taxol-resistant cell lines and identified a large number of Tax01 
Page 4 
resistance mutations in P-tubulin. 
 Before [the petitioner] joined my laboratory, 
identifying such mutations was an arduous process, and prior attempts to use random 
mutagenesis had not been successful in the hands of other researchers. At that time, I 
was not sure that a young scientist like [the petitioner] could carry out such a difficult 
project. 
I was surprised when [the petitioner] isolated so many mutations in such a short period 
of time, fully demonstrating his extraordinary experimental skills and creativity.' 
Remarkably, his work revealed that P-tubulin mutations change the structure of tubulin, 
affect interactions between different tubulins, and disrupt microtubule assembly. They 
cause drug resistance by counteracting the action of Taxol, which has been demonstrated 
to enhance microtubule assembly. . . . Most importantly, [the petitioner] discovered that 
the drug-resistance mutations are not limited to specific regions of P-tubulin but spread 
to the whole sequence of the gene. . . . 
This innovative finding provides new insights into the complicated mechanisms leading 
to resistance to anti-cancer drugs both in tissue culture and in patients. Moreover, [the 
petitioner's] work disputed a dogmatic idea and demonstrated why drug-binding 
mutations are not a major drug resistance mechanism in eukaryotic cells, but mutations 
affecting microtubule assembly are. . . . We fully expect that the manuscripts we are 
preparing based upon [the petitioner's] research will have an immediate impact on the 
scientific community and put us at [the] top in the field of revealing drug resistance 
mechanisms in clinical cancer therapy. 
committees, stated: 
As a research fellow now, [the petitioner] devotes himself to studying the potential roles 
of two microtubule interacting proteins, stathmin and katanin, in mediating cancer drug 
resistance. There are abundant studies indicating that these proteins regulate 
microtubule assembly, and a few papers suggest they may influence cellular drug 
sensitivity. However, it is necessary to obtain solid evidence for or against a role for 
these proteins in cancer drug resistance. This information will provide insights into 
novel drug resistance mechanisms in cancer and will help develop novel therapeutic 
strategies that may eventually improve the efficacy of cancer treatment. In a short 
period of time, [the petitioner] has realized many insights into the locations of the 
molecules that affect the microtubule network 
who has "collaborated on some important projects with the 
laboratory in which [the petitioner] works," stated that the petitioner's "significant findings thoroughly 
1 
 Quoting this sentence in an introductory brief, counsel erroneously replaced the word "surprised" with the phrase 
"absolutely stunned." 
demonstrated a common mechanism of drug resistance. This work greatly improved our understanding 
of anti-cancer drug resistance mechanisms." 
intelligent researcher," but provided few details about the petitioner's work except to state that "[hlis 
research showed that mutations in a- or P-tubulin genes cause drug resistance in cancer cells." 
: of Baylor College of Medicine, Houston, Texas, stated: "I started to 
learn [about the petitioner's] work during [a conference] in 2005." curriculum vitae indicates 
thatas an assistant professor at UTHSC from 2001 to 2004, whle the petitioner was studying 
for his master's degree there. 
[The petitioner] found that mutations in tubulins are present in samples from patients 
with different cancers. . . . Accordingly, he created those mutations in tubulin gene and 
transfected the mutant genes into a cancer cell line. Astoundingly, the cancer cells 
gained resistance to paxlitaxel. Based on this unprecedented discovery, [the petitioner] 
went even further to explore the molecular mechanism underlying the process and 
whether the mutations affect the sensitivity to other drugs. 
The only initial witness outside of  ousto on, is an assistant professor at Ohio State 
University. stated: 
I got to know [the petitioner's] outstanding research and contributions through reading 
his journal articles and attending his presentations. . . . [The petitioner's] research was 
extremely challenging and rewarding because thanks to his research, for the first time in 
cancer research, the interactions between a- and P-tubulin mutations and cancer drug 
resistance were clearly identified and elaborated. 
With regard to reference to the petitioner's "'ournal articles," the petitioner himself claimed to 
have had only one article published at the time made this assertion. 
The petitioner submitted copies of his writings, consisting of one published article, one "[mlanuscript in 
review," and one "[mlanuscript to be submitted." The petitioner also documented four citations of his 
work. Two of the citations are self-citations by - 
On September 10, 2008, the director issued a request for evidence, instructing the petitioner to submit 
evidence of the impact of his research outside of UTHSC, such as additional citations of his work. In 
response, the petitioner submitted evidence showing that his second article had been published; a letter 
showing that a third article had been accepted for publication; documentation of increasing international 
citation of his articles; and several new letters from independent witnesses outside of UTHSC. 
of Albert Einstein College of Medicine established her very substantial 
credentials and then evaluated the petitioner's work: 
Page 6 
I am best known for my pioneering work describing the unique mechanism of action of 
Taxol, an important antitumor drug used throughout the world. My laboratory was the 
first to describe the enhancement of the polymerization of tubulin and the formation of 
stable microtubules by Taxol. Our work on Taxol generated extensive interest in this 
drug and contributed significantly to its success as a cancer chemotherapeutic drug. I 
am the recipient of several awards including membership in the National Academy of 
Sciences, The Institute of Medicine, and the American Academy of Arts and Sciences, 
plus I am a past-president of the American Association for Cancer Research. . . . 
Today, as one of the most useful anti-cancer drugs ever developed, Taxol has been given 
to more than one million patients. . . . 
However, it was observed that patients often displayed resistance to the drug, even after 
initially responding to it. . . . Although it was suspected that mutations in tubulin was the 
major reason for resistance, it has been very difficult to find such mutations by 
traditional screening procedures. To overcome these obstacles, [the petitioner] 
developed new methodology to identify Taxol resistant mutations in animal cells. . . . 
[The petitioner's] research not only greatly increased the number of resistance mutations 
found, but also explained why their locations . . . are all capable of decreasing 
microtubule assembly and counteracting the action of Taxol that stabilizes microtubules. 
of Umei University, Sweden, stated that the petitioner "has become a 
to the research in how to circumvent drug resistance in cancer chemotherapy." 
asserted that the petitioner's "innovative method allowed [the petitioner] to identify more than 
50 drug resistance mutations, a number that is four times greater than the cancer drug resistance 
mutations discovered by all other researchers combined." 
[The petitioner's] discovery has immediate and significant impacts on the work in my 
laboratory. I found [the petitioner's] discovery very inspiring and therefore requested 
[the petitioner's] laboratory to provide us with the cell lines that he had developed. 
These cell lines allowed us to test the efficacy of drugs to kill cancer cells in a manner 
we had not previously been able to do. The uniqueness of such cell lines lies in the fact 
that a simple antibiotic could easily regulate the gene expression and thus drug 
resistance. Talung advantage of [the petitioner's] unprecedented findings, we are now 
capable of testing numerous potential cancer drugs. . . . 
In his second paper . . . [the petitioner] continues his leading role in deepening our 
understanding of mechanism of resistance of paclitaxel (marketed under the name 
Taxol). . . . I was thrilled to read in that paper that he had identified the majority of Taxol 
resistance mutations. . . . This further helps researchers like me to greatly advance the 
design and development of drugs that kill the cancer cells more quickly and efficiently. 
As a leading pharmaceutical scientist, I regard this work as exemplary of outstanding 
scientific merits and technical quality. 
a research assistant professor at the University of Chicago, trained at the 
University of Texas before the petitioner arrived there. h stated: "Taking advantage of [the 
petitioner's breakthrough findings, our group was able to express t e mutant protein in human neuronal 
cells." hclaimed that "our research project would have been delayed indefinitely" but for the 
petitioner's work. 
saw an invited talk by the petitioner and stated: 
From his exciting seminar, I strongly believe that [the petitioner] is currently playing a 
significant role in our nation's efforts to overcome clinical resistance to cancer drugs, a 
major impediment to current cancer treatment paradigms. . . . [The petitioner's] research 
has greatly influenced the pharmaceutical industry's decision making regarding the 
safety criteria for drugs. . . . 
[The petitioner's] findings in support of this drug resistance mechanism, without doubt, 
pave the way for inventing novel drugs or changing the treatment regimen to kill cancer 
cells.more efficiently. Such a contribution is well beyond what could be expected from 
a young scientist so early in hs career. 
resistance." 
The director denied the petition on February 2,2009. The director acknowledged the intrinsic merit and 
national scope of the petitioner's work, but found that the petitioner failed to "demonstrate a past history 
of achievement with some degree of influence on the field as a whole." The director noted the 
petitioner's minimal publication and citation record, and found that, while some researchers have 
described the petitioner's influence on their own work, the record did not establish the petitioner's 
impact and influence on his field. 
On appeal, counsel argues that the director did not give sufficient consideration to evidence of the 
petitioner's influence in his field. We are inclined to agree with counsel on this point. It is clearly true 
that, at the time the petitioner filed the petition, his publication and citation record were minimal. If 
publication and citation were the only permissible factors, then denial would have been the proper 
outcome. As it stands, however, those are strong factors but not the only ones, and they are not 
invariably the dominant factors. Citations are an important way to measure the impact of a researcher's 
work, but they are not the only way. (We note that the record hints at an accelerating rate of citation of 
the petitioner's published work.) 
Page 8 
The director was correct in making the general finding that an alien cannot earn a waiver simply by 
locating witnesses who are willing to write letters on the alien's behalf. Nevertheless, we must consider 
- - 
the sources and content of the letters. for instance, is an acclaimed pioneer 
of Tax01 research, and an authority in the field whose opinion we cannot lightly disregard. 
did not merely offer vague praise for the petitioner's promise or potential, or for his ski1 
complex laboratory equipment. Rather, she and other witnesses offered credible, persuasive and 
detailed explanations of why the petitioner's findings are especially significant, and how they affect an 
area of national concern. 
By filing the petition at the very beginning of his professional career, before he had even formally 
received his Ph.D. diploma, the petitioner chose to seek the waiver at a time before he had much of a 
record to demonstrate. Premature filing of this kind can easily be fatal to a national interest waiver 
petition, even if many such petitions could have been approved if filed at a later time. In this 
particular instance, however, the available evidence of record strongly indicates that the petitioner is 
already responsible for important findings in his specialty. That these findings came early in his 
career does not diminish their significance. The petitioner's eligibility might have been more 
obvious had he filed the petition at a later date, but this is not a disqualifling factor here. 
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. § 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.