sustained EB-2 NIW Case: Medical Genetics

identifyingdatadeletedto
preventclearly unw~t.ed
invasion.ofpersonalpnvacy
PUBLICCOpy
u.s.Department of Homeland Security
20 Mass. Ave., N.W., Rm. A3042
Washington, DC 20529
u.s.Citizenship
and Immigration
Services
FILE:
LIN 04 224 50106
Office: NEBRASKA SERVICE CENTER Date: MAY 2 4200~
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:
SELF-REPRESENTED
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.
~Robert P. Wiemann, Chief
Administrative Appeals Office
www.uscls.gov
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Page 2
DISCUSSION: The Director, Nebraska Service Center, denied the employment-based immigrant visa petition.
The matter 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 a member of the professions holding an advanced degree. The petitioner seeks
employment as a senior research associate at Oregon Health & Science University. 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
ajob offer would he in the national interest of the United States.
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 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,
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:
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The Service [now 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 waiverof: the job offer will be
in the national interest. Each case is to be judged on its own merits.
Matter a/New York State Dept. ofTransportation, 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.
The petitioner describes his work:
I am currently employed by the Department of Medical and Molecular Genetics, Oregon
Health & Science University (OHSU).... Meanwhile, I also worked as [a] postdoctoral
research associate at Portland Research Center of Shriners Hospitals for Children, which is
actually affiliated with ORSU. I have been working with Dr. Scott Sadler since 2002 on his
NUl-funded research programs . . . to study molecular mechanisms of congenital
malformations and birth defects of Hand-Foot-Genital syndrome and Guttmacher Syndrome.
In additional [sic], I have been granted a research fellowship ([$]50,OOO/year)sponsored by
Shriners Hospitals from 2003 to 2005 for the study of molecular and genetic mechanisms of
Hand-FOOl-Genitourinary Syndrome using microarray technique and mouse model. ... I am
the only scientist in our group [to] have exceptional skills and experience using microarray
technique. Therefore, I playa unique role in these NIH-funded projects .... I also teach
some molecular and microarray techniques and methods to the students working in our lab.
. .. [Staff members also] provide free medical and surgical care services and research
services for orthopaedically challenged American children and treat children with limb
malformations caused by birth defects. . . . Consequently, my research work and activities
will benefit the economy of USA [and] benefit the education and health of American children
and citizenjs] ....
I not only have a strong background in molecular biology but also have a mastery of
computer software necessary for analyzing microarray data to discover gene expression
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characters and interpret the data into significant biological function features according to
genome-wide gene expression patterns. Therefore, I have a big advantage over most other
molecular biologists using microarray techniques ....
It is not suitable for my 1-140 petition [to] go through the prolonged and slowing procedures
of the requirement for labor certificat[ion] .... If I could not continue working on [the]
present NIH-funded projects, my research achievements and the progress of NIH programs
which I am working on could be delayed or completely suspended.
The petitioner lists several "major research experiences and activities," including WebQTL, which "is a
unique World Wide Web services for neurogeneticists to rapidly identify and map genes and quantitative trait
loci (QTL), particularly those related to brain structure and behavior." The petitioner states that he "worked
on setting up [the] brain expression database ofBXD strains using Affymetrix U74Av2 Genechip."
The petitioner submits documentation relating to his research fellowship at Sooners Hospital for Children.
Fellowship application documents indicate that the petitioner requested $50,000 per year, including $37,000
in salary, $3,000 in fringe benefits, and $10,000 to cover various expenses related to the research.
The petitioner's initial submission includes letters from five witnesses. Three of the witnesses are, or were,
on the faculty of the University of Tennessee (UT), where the petitioner trained as a postdoctoral researcher
from 1999 to 2002. A fourth witness collaborated with the petitioner's UT research group. The fifth witness
is on the OHSU faculty.
Professor Robert W. Williams, chair of Developmental Genetics at UT, states:
[The petitioner] was a postdoctoral fellow in my [laboratory] at University of Tennessee
Health Science Center. He was a valued colleague who rapidly became critical to our
microarray studies. [The petitioner] demonstrated exceptional research ability and skills in
molecular biology, microarray experimental technique, and the critical downstream data
analysis .....
He began to work in my lab on the WebQTL project in 2000 and was crucial in helping us set
up a mouse brain gene expression database that is now very widely used by the scientific
community.
UT Professor Kenneth F. Manly states that the petitioner's "work has contributed directly to the success of
WebQTL. He obtained data on gene expression in mouse brain without which WehQTL would not exist."
Prof. Manly also asserts that the petitioner's "research and development work ... has made WebQTL unique
among bioinfonnatic tools available to scientists in neurogenetics and neuroinformatics.'
Dr. H. Scott Stadler, an assistant professor at OHSU, states:
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[The petitioner] came to my laboratory already an accomplished investigator ..... Prior to
coming to my laboratory, [the petitioner] established himself as an outstanding investigator in
the field of high-throughput genomics.... His expertise in the field of gene microarrays and
their analysis is top-notch and is needed to maintain our progress on our hypospadias work
.... as well as our newly funded examination of bladder/ureter integration defects.....
After joining my lab, [the petitioner] demonstrated his exceptional ability to examine the
birth defects in a high throughput manner, using gene microarrays and complex statistics to
examine over 46,000 genes to identify the factors affected in hypospadias and Hand-Foot­
Genital Syndrome (HFGS). His experience and research acumen has allowed [the petitioner]
to make insightful predictions regarding the effects specific teratogens may have on the
HFGS defects ..... Following this initial work, [the petitioner] has focused on the role of
retinoic acid in triggering the HFGS phenotypes, identifying an important mechanism in the
pathology of the hypospadias defect that was unknown prior to his investigations ...... I am
confident [the petitioner's] findings will have a great impact on the field of genitourinary
birth defects as evidenced by [the] level of enthusiasm and collaborative inquir(i]es following
the presentation of (the petitioner's] data at the American Society of Human Genetics
meeting .... ' as well as the Teratology Society International Congress this summer in
Vancouver, B..C.
Other witnesses who have worked with the petitioner offer similar praise for the petitioner's research abilities.
On June 2, 2005, the director issued a request for evidence, instructing the petitioner to submit "additional
documentary evidence" to show that the petitioner has "had some degree of influence on the field as a
whole." As an example, the director requested evidence that other researchers have cited the petitioner's
published work.
In response, the petitioner observes that the journal Nature Genetics, which ranks "first out of 120 journals in
the field of genetics and heredity," published one of his articles in 2005. The petitioner states: "the 2003
impact factor for Nature Genetics is 26.49 ...... Therefore, the papers published in Nature Genetics have a
great impact on the field of genetics and genetic related disease." No article has an automatic impact simply
based on where it appears. Rather, the impact factor of a given journal is an average, based on the citation
rates of individual articles that appear in that journal. The 2003 impact factor of Nature Genetics has no
effect whatsoever on the impact of the petitioner's 2005 article; it does not guarantee that anyone will ever
cite the petitioner's article. Rather, citation of the petitioner's article will, in the future, influence the
calculation of Nature Genetics' 2005 impact factor. For this reason, we must look not at the impact factor of
the journal in general, but rather at the citation rate of the petitioner's article in particular.
The petitioner documents 40 citations of English-language articles that he co-authored. Materials in the
record show that 24 of these citations pertain to a 2003 article attributed to 80 "Members of the Complex
Trait Consortium." The second most frequently cited article, with 8 citations, was attributed to 113 members
of the same consortium. Given these extremely large numbers of co-authors, and the absence of anything to
single out the petitioner as having made especially important contributions to the articles, the weight of these
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citations is diminished somewhat. There remain two cited papers, each with far fewer co-authors. One article
was cited twice, the other six times. In each instance, only one citation is not a self-citation by the petitioner
or a co-author.
The petitioner also documents seven citations of his earlier work in China. Both the cited sources and the
citing articles are in Chinese with no translations provided.
Other evidence shows that a number of researchers use WebQTL as a resource. We shall discuss some of this
evidence in the context of the appeal.
The director denied the petition on July 30, 2005, observing that most of the citations of the petitioner's work,
and indeed the cited articles themselves, did not exist until after the filing date. The director also noted the
large number of co-authors of the most heavily cited material. The director concluded that the petitioner has
not persuasively shown significant influence on the field as a whole.
On appeal, the petitioner states that the director "did not recognize my achievements in [the] WehQTL
project," which, the petitioner claims, is "one of the most widely used websites" in academic research.
Materials submitted previously identify the petitioner as one of more than 25 contributors to the W ebQTL
site. The site is divided into several sections; the petitioner is one of six named contributors to the "BXD
Brain Gene Expression Data" section. The petitioner asserts: "An Editorial and a News and Views article [in
Nature Genetics] made special comment about WebQTL and my paper on Nature Genetics."
The record shows that Nature Genetics devoted part of an issue (specifically volume 37, number 3, March
2005) to several articles on QTLs and related subjects. An article co-authored by the petitioner appears on
page 233 of that issue. The editorial and "News and Views" piece are prefatory pieces in this same issue of
Nature Genetics, commenting on the contents of the current issue.
The editorial, "Old mice, new tricks," mentions WebQTL in one sentence: "Although the computational
challenge is obvious, the WebQTL online tool developed by Chesler et al shows
how decades of phenotypic data can be seamlessly integrated with expression data to allow in silico mapping
of QTLs." It is not clear how this sentence constitutes "special comment." The "News and Views" article,
"Mapping expression in randomized rodent genomes" iscusses the findings in three
articles that appear in the same issue of Nature Genetics. IS passage appears toward the end of the article:
"A more important problem is the development of tools for making sense of these complex data, including
their visualization. WebQTL, developed by Chesler and colleagues, is a step in this direction." The
discussion of WebQTL in this issue ofNature Genetics is not, by itself, highly persuasive.
On appeal, the petitioner submits additional letters and documentation to establish the importance of
WebQTL and the petitioner's own contribution thereto. The petitioner correctly observes that,while several
of his articles were published after the filing date, the research work described in those articles had been
completed prior to the filing date. Indeed, the petitioner's 2005 article in Nature Genetics was submitted, in
manuscript form, with the petitioner's initial filing. These articles relate to the petitioner's work at the
University of Tennessee, an institution that the petitioner had already left by the petition's date of filing.
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In a newly submitted letter, Professor of the University of Groningen, the Netherlands, states:
We recognized [the petitioner's] research work and his accomplishments in the WebQTL
project. For several years we have been actively collaborating with the Genomics Institute of
the Novartis Research Foundation, based in La Jolla, CA, to determine gene expression
patterns in hematopoietic stem cells. All our data were deposited in [the petitioner's] gene
expression databases since 2003. His research results were also cited in our seminal paper
published in Nature Genetics earlier this year ....
The WebQTL interface is an essential component of our work, and is queried by many of my
colleagues around the world. It allows us in [a] very user-friendly way to identify gene
networks operating in hematopoietic stem cells. There is no doubt that [the petitioner's]
accomplishments will serve as an example for many other research groups.
To support the assertion that the WebQTL resource is widely used internationally, the petitioner submits
printouts showing that the site receives thousands of requests per day, including visits from dozens of other
countries. Additional letters from the petitioner's collaborators affirm the petitioner's major role in the
WebQTL project, and in more recent research that the petitioner has undertaken since leaving UT and the
WebQTL project. The materials submitted on appeal demonstrate, to an extent not accomplished by the
petitioner's prior submissions, the international scope and importance of the petitioner's past work and the
scientific community's continued reliance on the petitioner's expertise.
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 the significance of this petitioner's work rather than simply the general
specialty. 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.