sustained EB-2 NIW Case: Chemistry

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U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Office ofAdministrative Appeals MS 2090 
Washington, DC 20529-2090 
U. S. Citizenship 
and Immigration 
. . 
SRC 09 800 15595 
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. 5 1 153(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. 
If you believe the law was inappropriately applied or you have additional information that you wish to have 
considered, you may file a motion to reconsider or a motion to reopen. Please refer to 8 C.F.R. 5 103.5 for 
the specific requirements. All motions must be submitted to the office that originally decided your case by 
filing a Form I-290B, Notice of Appeal or Motion, with a fee of $585. Any motion must be filed within 30 
days of the decision that the motion seeks to reconsider or reopen, as required by 8 C.F.R. 5 103.5(a)(l)(i). 
Chief, Administrative Appeals Office 
DISCUSSION: The employment-based immigrant visa petition was denied by the Director, Texas 
Service Center, and is now before the Administrative Appeals Office (AAO) on appeal. The appeal 
will be sustained and the petition will be approved. 
This petition, filed on May 7, 2009, seeks to classify the petitioner 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 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 has 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 states that the petitioner's work has been cited to more than one hundred times and 
that her evidence "proves she will serve the national interest to a substantially greater degree than would 
an available U.S. worker having the same minimum qualifications." 
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 ofjob 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 petitioner received her Ph.D. in Chemistry from Northwestern University in 2008. The director 
found 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 pertinent regulations define the term "national interest." Additionally, Congress 
did not provide a specific definition of the phrase, "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). 
A supplementary notice regarding the regulations implementing the Immigration Act of 1990 
(IMMACT), published at 56 Fed. Reg. 60897,60900 (November 29, 1991), states, in pertinent part: 
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. 21 5, 216 (Comm. 1998) [hereinafter 
"NYSDOT'], 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. Id. at 217. Next, it must be shown that the proposed benefit will be national 
in scope. Id. 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. Id. at 2 17- 1 8. 
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. Id. at 219. 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. Id. 
We find that the petitioner works in an area of intrinsic merit, chemistry, and concur with the 
director's finding that the proposed benefits of the petitioner's work 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. Id. 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 Ilepartment of Labor. Id. at 22 1. 
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. Whether the specific innovation serves the national interest must 
be decided on a case-by-case basis. Id at 221, n. 7. 
Along with her published articles, citation records, and association memberships, the petitioner 
submitted several letters of support. 
of Chemistry and Professor of Biochemistry, Molecular Biology, 
and Cell Biology, Northwestern University, states: 
[The petitioner's] research included studies of CueR in both metal sensing and gene 
regulation aspects. . . . [The petitioner] crystallized the first two metalloregulators of MerR 
family members in the world, CueR and ZntR. The solved structures (in collaboration with 
- revealed unusual metal coordination environments and elucidated the 
molecular mechanism of the metal sensitivity and selectivity. These intriguing results have 
been published in the top journal Science and have been cited 98 times in the last five years. 
[The petitioner's] next project focused on the structural characterization of 
metallochaperones, another class of copper receptor proteins involved in copper trafficking. 
Because there is no free copper or copper pool in the cell, a special class of proteins whose 
major function is to deliver copper (known as the metallochaperone proteins) to the 
corresponding target proteins is crucial to achieve the appropriate copper level in the cell. . . . 
To investigate the structure-function relationship of metallochaperone proteins, she 
independently crystallized the Cu- and Ag- bound CusF, solving the structures. CusF is a 
periplamic protein in E.coli, thought to serve as copper chaperone. The structures revealed 
novel copper recognition via cation-n and methionine interactions. The molecular recognition 
of CusF discovered in [the petitioner's] study is of unprecedented detail compared to other 
metallochaperones and metalloregulatory proteins. The CusF active site chemistry affords a 
distinct class of copper receptor proteins with means to both control metal exchange and 
prevent adventitious redox reactions. These intriguing results have been published in a top 
journal, Nature Chemical Biology, and have already been cited numerous times. 
In one of [the petitioner's] earlier projects, she focused on the structural characterization of 
metallochaperones, a class of copper (Cu) receptor proteins involved in copper trafficking. In 
excess, copper ions are highly toxic, thus proper copper trafficking is essential to cell vitality. 
Methionine-rich motifs have an important role in copper trafficking, including the putative 
metallochaperone CusF protein. [The petitioner] crystallized the Cu(1) bound form of CusF 
and determined the structures. The high-resolution model shows that CusF uses a new metal 
recognition site wherein Cu(1) is displaced from a Met2His ligand plane toward a conserved 
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tryptophan. Spectroscopic studies demonstrate that both thioether ligation and strong cation-.n 
interactions with tryptophan stabilize metal binding. The discovery of this active site 
chemistry and such cation-.n interactions was the first for transition metal receptors. 
Although I have never worked with [the petitioner], I am very familiar with her work at 
Northwestern University since part of my laboratory works in the same field. These 
publications convince me that [the petitioner] is a highly skilled and creative scientist. In 
particular, I am impressed by [the petitioner's] innovative studies of the molecular 
mechanisms of metalloregulatory protein CueR in copper homeostasis. 
To understand the atomic level metal responsiveness of CueR in the model bacterium 
Escherichia coil, [the petitioner] initiated the structural characterization of CueR protein. She 
purified the protein and successfully crystallized CueR bound to metal cofactors. This work 
was of outstanding interest because CueR represented the first crystallized MerR family 
metalloregulator. [The petitioner's] 3-D structures clearly reveal how CueR binds the metals 
and further showed that a novel microenvironment provides the selectivity to the coinage 
metals. To further investigate metal selectivity, [the petitioner] crystallized another MerR- 
family metalloregulatory protein ZntR. As a zinc sensor, ZntR turns on zinc transport genes 
once intracellular level of zinc rise above the feptomolar threshold. [The petitioner's] study 
provided the first atomic resolution clues as to how evolutionarily related metalloregulatory 
proteins could distinguish among closely related metal ions, something that many of us in 
field were (and remain) quite interested in. This work, published in Science, was truly 
inspiring and ground breaking for its significance; we continue to refer to this work in our 
ongoing efforts to understand metal selectivity in another structural family of 
metalloregulatory proteins. 
of the College of Science and Engineering, University of 
Edinburgh, Scotland, states: 
I have never worked with [the petitioner] and my comments are solely based on my 
knowledge gained through her publication . . . . 
In a clear display of scientific talent, [the petitioner] made critical discoveries while engaging 
in studies on the structures of soluble proteins involved in copper transport. She used E. coli 
as a model to study the detoxification process of copper through the proteins' binding 
mechanisms. E. coli bacteria maintain a strict cellular copper quota by using copper 
homeostasis to control and allocate the metal to important enzymes. One of the first 
responses to excess copper stress is the expression CopA, a homolog of the Menkes and 
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Wilson disease proteins. Copper-induced expression of CopA and Cue0 is controlled by 
CueR, a MerR metalloregulatory protein. 
The biochemical and biophysical data suggested that CueR is responsive to Cu(l), Ag(1) and 
Au(l), while it shows no response to Zn(II), Hg(I1) and Cd(I1). To address the molecular basis 
of this selectivity, [the petitioner] initiated the crystallization of the metalloregulators of 
MerR family proteins and successfully crystallized Cu and Ag bound forms of CueR as well 
as Zn bound form of ZntR. Successful crystallization of MerR family proteins had eluded the 
best efforts of at least 3 other laboratories, including mine. The solved structures indicate that 
CueR is capable of distinguishing metal ions with a +1 charge from metal ions with a +2 
charge in gene regulation, while the models reveal the crucial structural features of the metal 
selectivity and sensitivity. [The petitioner's] structure-based sequence alignment of MerR 
metalloregulatory homologs allows for predictions of metal selectivity in other family 
members as well. The combination of thermodynamic and structural studies reveals the metal 
selectivity and sensitivity of metalloregulatory proteins and the underlying structural basis. 
The ultrasensitivity of CueR suggests that the prokaryotic cytoplasm operates under 
conditions of copper deprivation. This understanding of how structure affects metal 
sensitivity and selectivity in the MerR family of metalloregulatory proteins at the atomic 
level has helped my own research. 
The petitioner's initial submission included citation indices from IS1 Web of Knowledge indicating 
that her body of work has been cited to more than one hundred times. Such independent citations are 
solid evidence that other researchers have been influenced by the petitioner's work and are familiar 
with it. 
The director denied the petition, finding that the petitioner failed to establish that a waiver of the 
requirement of an approved labor certification would be in the national interest of the United States. 
The director acknowledged the national scope of the petitioner's work, but concluded that the 
petitioner had not demonstrated the ability to serve the national interest to a greater extent than other 
researchers in her specialty. The director's decision stated: "You were the first author of only one 
article. . . . You have not established that you were the lead, or one of the lead researchers, in three of 
the five studies. . . . One published article has been shown to have been cited 103 times, however, you 
are not [the] primary author of this article." 
On appeal, the petitioner submits additional citation records showing that the article she first- 
authored in Nature Chemical Biology has been independently cited to seventeen times as of the 
petition's filing date. With regard to the petitioner's article in Science that was her most frequently 
cited work, the petitioner submits letters of support from the "co-first-authors" of the article 
explaining that her contributions were "crucial" to their research results. While we acknowledge the 
director's concerns regarding the lack of cites to the petitioner's first-authored work and regarding 
the level of her contribution to her remaining published work (including the article she co-authored 
in Science), we find that the evidence submitted on appeal is sufficient to overcome those concerns. 
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In this matter, we find that the evidence submitted by the petitioner is adequate to meet the three- 
prong test established by NYSDOT. The heavy citation of the petitioner's published articles 
corroborates the experts' statements that her work has significantly impacted the field. The record 
reflects that the petitioner's research findings are important not only to the institutions where she has 
worked, but throughout the greater field as well. Leading scientists, including researchers with no 
institutional or personal ties to the petitioner, have acknowledged the value of her work and its 
influence on the field as a whole. 
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 the citation records submitted by the petitioner establish that 
the scientific community recognizes the significance of her 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. tj 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.