sustained EB-2 NIW Case: Medical Imaging

(b)(6)
DATE: MAY 0 7 2013 OFFICE: TEXAS SERVICE CENTER 
INRE: Petitioner: 
Beneficiary: 
U.S. Department of Homeland Security 
U.S. Citizenship and Immigration Services 
Administrative Appeals Office (AAO) 
20 Massachusetts Ave., N.W., MS 2090 
Washington, DC 20529-2090 
U.S. Citizenship 
and Immigration 
Services 
FILE: 
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: 
Enclosed please find the decision of the Administrative Appeals Office in your case. All of the documents 
related to this matter have been returned to the office that originally decided your case. Please be advised that 
any further inquiry that you might have concerning your case must be made to that office. 
Thank you, 
~~s~ 
JRon Rosenberg 
Acting Chief, Administrative Appeals Office 
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DISCUSSION: The Director, Texas 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. § 1153(b)(2), as a member of the professions holding an advanced degree. The 
oetitioner is a oostdoctoral fellow at the 
Maryland, conducting research on medical imaging. 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. 
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 
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increasing the number and proportion of visas for immigrants who would benefit the United States 
economically and otherwise .... " S. Rep. No. 55, lOlst Cong., 1st Sess., 11 (1989). 
Supplementary information to the regulations implementing the Immigration Act of 1990, published at 
56 Fed. Reg. 60897, 60900 (November 29, 1991), states: · 
The Service [now U.S. Citizenship and Immigration Services (USCIS)] 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. 
In reNew York State Dept. of Transportation, 22 I&N Dec. 215 (Commr. 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. 
While the national interest waiver hinges on prospective national benefit, the petitioner must establish 
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 AAO also notes that the regulation at 8 C.F.R. § 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 offer/labor 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 Form 1-140 petition on March 8, 2012. In an accompanying statement, 
counsel stated: 
[The petitioner's] work will clearly benefit the national interest of the United States 
by ... virtue of his achievements in the area of medical image analysis. Over the 
course of his career [the petitioner] has made remarkable and groundbreaking 
contributions to the field. His studies on computer algorithms for ankylosing 
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spondylitis have been highly acknowledged and recognized by fellow peers. [The 
petitioner] has designed the first computer algorithm to quantitatively measure 
syndesmophytes in the 3D space of a CT scan. This breakthrough has allowed him to 
present at prestigious conferences and to be published in well known journals .... 
His groundbreaking research in the field of medical image analysis, specifically as it 
relates to arthritis, bone and joint problems, and other rheumatic diseases, has already 
been of great benefit to the nation .... 
[The petitioner] has been consistently publishing highly important articles throughout 
his career. ... These publications have been cited 98 times since 1999. 
The petitioner submitted copies of ten articles published between 1999 and 2010. The petitioner also 
submitted information regarding 16 conference presentations between 2001 and 2011. Printouts 
from the Google Scholar database corroborated counsel's citation figures. Printouts from the 
publishers' web sites show the impact factors for some of the journals that carried the articles. 
Counsel stated: "In August 2011, (the petitioner's] inventions were released in the Federal Register 
indicating that the U.S. Government is willing to license these inventions and believes others will be 
interested in licensing them. (See Exhibit 3)." Exhibit 3 consists of a copy of 76 Fed. Reg. 51376-77 
(August 18, 2011). The listing "Government-Owned Inventions; Availability for Licensing" reads: 
Quantitative Measurement of Syndesmophytes in Ankylosing Spondylitis Using 
Computed Tomography (CT) 
Description of Technology: 
Syndesmophyte (abnormal bone) growth in the spine is a hallmark of Ankylosing 
Spondylitis, a type of inflammatory arthritis. Syndesmophyte growth is currently 
monitored using semiquantitative scoring of radiographs, but radiographs consider 
only a small part of the vertebra, and the method is subject to reader error. Because 
syndesmophytes grow slowly, radiographs also lack sensitivity. The invention 
provides a method to measure syndesmophytes using data from computed 
tomography scans of the lumbar spine. It provides computer algorithm that fully 
quantitates syndesmophyte volumes in three-dimension space. This method allows 
precise and accurate measurement of the presence and rate of growth of 
syndesmophytes over time, which for the first time will permit testing of whether any 
treatments can slow the progression of this type of spinal arthritis. 
Potential Commercial Applications: 
• The method would be useful for clinical trials of drugs against Syndesmophyte 
growth. · 
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• Because of the improved precision, achieving statistical significance in assessing the 
efficacy of a drug would require smaller samples. 
Competitive Advantages: 
• The present method is more automated than existing methods. 
• The method is more precise and sensitive than existing methods, thus providing 
more reliable statistical analysis and improved planning in treatment regimen. 
The petitioner submitted no documentary evidence to show whether publication of such 
"Availability for Licensing" notices is routine for innovations developed at or else is reserved 
for innovations seen to be especially significant. The petitioner also did not establish how many 
entities (if any) 
responded to the notice with requests to license the method, or show that the 
response rate stands out in comparison to notices for other innovations. The Federal Register listing 
may be quite significant, but the petitioner did not submit sufficient documentation to support such a 
conclusion. 
The petitioner submitted letters from six witnesses who have worked with the petitioner at various 
stages of his career. Dr. a senior academic at the 
United Kingdom, supervised the petitioner's doctoral research there. Dr. stated: 
This work involved the modeling of realistic clutter backgrounds by a number of 
methods which were successful in detecting very weak signals in high levels of 
clutter. [The petitioner] also applied his methods to a pattern recognition correlator 
for robust, distortion invariant fingerprint recognition. . . . The work contributed 
significantly to enhancing the performance of correlation filters for the pattern 
recognition of targets in high clutter backgrounds and has been subsequently used 
extensively in both our own group's research on filter development and that of other 
research groups, particularly those in the United States who have widely cited the 
papers. 
Professor director of the 
at United Kingdom, stated: 
[The petitioner] worked as a researcher in my laboratory for 3 years after finishing his 
PhD .... He was extremely productive generating two novel applications. In the first 
project he developed a novel technique for fast implementation of a space variant 
Gaussian filter, which allowed us to model the output of neural processing in the 
visual system ... [taking into account] variable resolution from central to peripheral 
vision .... [The petitioner's] work allowed us to significantly speed up our filtering 
algorithms. We developed this line of thinking in an entirely novel rear view mirror 
application. Again, taking inspiration from the human visual system, [the petitioner] 
developed a geometric algorithm that transformed the motion of an overtaking car ... 
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to deliver constant lateral motion of the overtaking car in the mirror for a constant 
overtaking speed. This was an entirely novel approach to the problem of analyzing 
the motion of road vehicles. This could be used to compute an overtaking car's 
approach speed visually by the much simpler process of measuring translation speed 
in the wing mirror. 
Both Dr. and Prof. praised the petitioner's subsequent work at Four witnesses 
who had worked with the petitioner there provided details about that work. 
Dr. associate scientist and lab manager at the Department of Radiology and Imaging 
Sciences, Clinical Center, stated: · 
[The petitioner] joined my group in April of 2005 .... I state with absolute 
confidence that [the petitioner] is a scientist of extraordinary ability. His scientific 
achievements in the field of image analysis for ankylosing spondylitis disease are 
both highly original and extremely substantial. 
In technical detail, Dr. stated that the petitioner developed a new imaging method that was 
superior to the previous method (simple radiographs, or X-ray photographs) for tracking the progress 
of ankylosing spondylitis. Dr. then stated: 
Another area [in which the petitioner] has made [a] significant contribution is in the 
computer aided detection of colonic cancer using virtual colonoscopy. . . . [The 
petitioner] proposed a brilliant idea to make use [of] the extrema curvature called 
ridgelines on the colon surface to detect and segment polyps and haustral folds. [The 
petitioner's] method effectively increases the sensitivity and reduces the number of 
false positives caused by the haustral folds. 
Dr. now owner of , was formed y the magnetic resonance (MR) section chief 
in Radiology and Imaging Systems at Dr. stated: 
[The petitioner] began working in the Clinical Imaging Processing Section of the 
Diagnostic Radiology Department in 2004 .... 
I introduced the petitioner] to a unique research challenge presented to me by the 
A respected 
health outcomes investigator, Dr. was assembling a longitudinal study 
of patients with ankylosing spondylitis, and sought my guidance to improve on 
markers of disease progression through a more rigorous use of high resolution 
imaging and image processing. 
. . . [The petitioner] envisioned and implemented a tailored 3D image processing 
strategy to address our research aims. . . . [The petitioner] developed a robust 
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Dr. 
methodology for defining the critical ridgelines that demarcate the key, clinical 
anatomy in spondylitis. . . . This exciting advance facilitated the automated 
quantification of subtle paravertebral ossification - a marker of disease progression in 
ankylosing spondylitis .... 
[The petitioner's] notable progress 
recognized by his collaborators in 
clinical outcomes research group. 
on this complex and important problem was 
and he officially joined Dr. 
chief of the Clinical Trials and Outcomes Section at the petitioner's 
---collaborator from 2007 to 2009 and his supervisor since then, stated: 
[The petitioner] has worked on development of a sensitive and accurate method to 
measure abnormal bone growth in ... ankylosing spondylitis .... 
[The petitioner] single-handedly developed the computer algorithms and tested the 
method. This contribution will likely lead to commercial licensing, as this invention 
overcomes a major hurdle in the assessment and treatment of patients with this 
condition. 
Dr. now an assistant professor at _ previously worked with 
the petitioner at provided background information about ankylosing spondylitis, and 
stated that the petitioner's imaging algorithm (described by other witnesses) is an "immeasurable" 
and "ground-breaking" contribution, and that USCIS should permit the petitioner to remain at 
"where he can actively engage with other scientists and researchers . . 
. [and] continue to foster 
development in this area of research." 
On July 16, 2012, the director issued a request 
for evidence. The director described several of the 
petitioner's initial exhibits (including letters and citation materials), and concluded that "the 
petitioner has not established that the beneficiary has specific prior achievements with some degree 
of influence on the field." The director also stated: "the petitioner did not explain how these 
activities are original contributions of major significance in the field." 
In response to the notice, counsel noted that the reference to "original contributions of major 
significance" derives from regulations for a different immigrant classification (specifically the 
regulation at 8 C.F.R. § 204.5(h)(3)(v), pertaining to aliens of extraordinary ability). Counsel 
asserted, correctly, that the petitioner need not meet the "extraordinary ability" threshold in order to 
qualify for the national interest waiver. 
Counsel discussed the petitioner's published works, and asked the director to "evaluate[] both the 
standing and prestige of the journals in question." Publication in prestigious journals is a means of 
disseminating one's work, but a given article does not derive its impact or influence from the journal 
that carries it. Rather, a journal earns its reputation by publishing high-quality articles. Eligibility 
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for the waiver rests on the individual merits of the petitioner, rather than on generalizations such as 
the schools he attended, the employers for whom he has worked, or the journals that have published 
his work. Institutional affiliation is not without weight, but it conveys no presumption of eligibility. 
The petitioner submitted updated citation information, and counsel observed that the petitioner's 
"number of citations currently stands at a minimum of 149." The increasing number of citations is 
consistent with growing reliance on the petitioner's work. 
Counsel stated that "high level sources" have sought the petitioner's input. Specifically, printouts of 
electronic mail messages show that the publisher of 
invited the petitioner to guest-edit an issue; another publisher , in 
invited the petitioner to contribute a chapter to a forthcoming book; and "the leading 
community for sharing surgical know-how for surgeons, by surgeons," invited the petitioner to 
submit content regarding one of his articles. The petitioner submitted no evidence that any of these 
messages came from "high level sources." 
The message, from May 2010, is the only one to predate the filing of the petition. The 
message reads like a promotion for the community, rather than any personal message to 
the petitioner. The message mentions the petitioner's article only once, followed by the phrase "If 
you are indeed the author"; there is no discussion of information in the article. The phrase "If you 
are already a member" indicates that the author of the message did not know whether or 
not the petitioner was a member. Also, it is not readily apparent why a web site "for surgeons, by 
surgeons" would solicit content from the petitioner, who is not a surgeon. It appears that the 
petitioner received the electronic equivalent of a "form letter." 
The other two messages are from April 2012, after the petition's March 2012 filing date. The 
message from contains no details about the petitioner's work, only the generic assertion: 
"Your previous work has led us believe [sic] that you may have new research findings relevant to the 
field and valuable to this publication." The message appears to be another "form letter" soliciting 
submissions for the proposed book. 
The message from reveals that was 
"launched in June 2011," less than a year before the petition's filing date. The petitioner had 
previously submitted reference materials to show "the standing and prestige of the journals" that 
have carried the petitioner's work. Those materials did not identify 
as a well-regarded or influential journal. Absent such evidence, counsel did not explain 
how the publisher is a "high level source." The message from the publisher asked the petitioner to 
"please refer the journal to [his] colleagues and other contacts in the field, including [his] librarian, 
for promotional purposes ... , submissions ... , and subscriptions." The promotional nature of the 
message and the very recent launch date indicate that was attempting to 
build up its journal's reputation, rather than trade on existing prestige or recognition in the field. 
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Even if the petitioner had established that the invitations were as prestigious as the petitioner 
claimed, they could not retroactively establish eligibility as of the filing date. An applicant or 
petitioner must establish that he or she is eligible for the requested benefit at the time of filing the 
benefit request. 8 C.F.R. § 103.2(b)(l). USCIS cannot properly approve the petition at a future date 
after the petitioner or beneficiary becomes eligible under a new set of facts. See Matter of Katigbak, 
14 I&N Dec. 45,49 (Reg'l Comm'r 1971). 
The director denied the petition on November 30, 2012. The director acknowledged the intrinsic 
merit of the petitioner's occupation, and the national scope of the benefits arising from work in that 
occupation. The director concluded that the petitioner had not established the impact or influence of 
his work on this field. The director stated: "The petitioner did not offer any evidence to show that 
the frequency or number of publications and citations to his work is unusual in the field, or explain 
how these activities show the beneficiary already has a past record of achievement with some degree 
of influence on the field." 
The director repeated the conclusion that "the petitioner did not submit any evidence to show that the 
beneficiary's original contributions are considered of major significance." On appeal, counsel again 
objected that the director held the petitioner to too high a standard. The record justifies counsel's 
complaint. While the threshold for the waiver is necessarily high, it is lower than the standard for 
extraordinary ability (a classification that requires not only influence, but acclaim. See section 
203(b)(l)(A) of the Act.) 
The director acknowledged the submitted citation figures, and stated: "Research and publication 
conducted in the course of one's professional duties are inherent in the field. The petitioner did not 
offer any evidence to show that the frequency or number of publications and citations to his work is 
unusual in the field." Counsel, on appeal, notes that the petitioner had submitted documentation of 
the journals' impact factors, which provides some baseline for comparing citation rates. Counsel 
also quoted from previously submitted witness letters, to show that others in the field have relied 
upon the petitioner's work. 
The witness letters are all from the petitioner's own mentors and collaborators, and therefore are not 
first-hand evidence of wider impact or influence. They are more useful as explanations of the nature 
ofthe petitioner's work. 
The citations of the petitioner's work have greater weight as objective evidence that other 
researchers are using the petitioner's findings in their own work. As noted previously, the 
petitioner's initial submission showed a considerable number of citations, with even more shown in 
response to the request for evidence. The impact factor information gives some indication of the 
citation frequency of articles in a given journal, and the petitioner's information consistently 
compares favorably in this regard. 
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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, and that the 
petitioner has made a variety of influential contributions. 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 submitted sufficient evidence to establish, by a 
preponderance of evidence, 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 AAO will withdraw the 
director's decision and approve the petition. 
ORDER: The appeal is sustained and the petition is approved.